R. v. Benson (M.) et al., 2012 MBCA 94

Citation: R. v. Benson (M.) et al., 2012 MBCA 94 Date: 20121011 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Dockets: AR 10-30-07392; AR 10-30-07470 BETWEEN : ) HER MAJESTY THE QUEEN ) Appellant / Respondent ) ) N. M. Cutler - and - ) for the Crown ) WARREN HELGASON ) J. R. Wolson, Q.C. and ) L. C.

Robinson (Accused) Respondent / Appellant ) for the Accused ) - and - ) ) Appeals heard: Dockets: AR 10-30-07394; AR 10-30-07471 ) October 12, 2011 BETWEEN : ) ) Judgment delivered: HER MAJESTY THE QUEEN ) October 11, 2012 Appellant / Respondent ) ) - and - ) ) MARVIN BENSON ) ) (Accused) Respondent / Appellant ) STEEL J.A.

INTRODUCTION 1 These appeals arise out of the Government of Manitoba’s resettlement program for Hecla Island (the Island), where ex-landowners, and their direct descendants, whose property had previously been expropriated, were eligible to apply for the lease of a lot at a lower price than persons obtaining a lease in a public draw. 2 Both accused, Marvin Benson (Benson) and Warren Helgason (Helgason), were on the committee that assessed the initial applications under the program. Along with two other individuals, both were initially charged with 31 counts of fraud, forgery and uttering forged documents.

The Crown withdrew a number of the counts. A number of other counts were dismissed following a motion for a directed verdict. 3 Of those remaining, Benson was found guilty of two counts of forgery contrary to s. 367 (

a) of the Criminal Code (the Code ) (counts 18 and 19), and acquitted of two counts of forgery and one count of fraud (counts 7, 14 and 21). He received an absolute discharge. He appeals his conviction on the two counts of forgery. The Crown appeals Benson’s acquittals with respect to forgery and fraud. 4 Helgason was found guilty of one count of fraud, two counts of forgery and two counts of uttering (counts 27, 28, 29, 30 and 31). He was acquitted of two counts of forgery, two counts of uttering and one count of fraud (counts 22, 23, 24, 25 and 26). The Crown appeals these acquittals.

5 Helgason appeals his sentence of a $1,500 fine and forfeiture of the house he acquired through fraud. While he wasconvicted of five counts, as a result of the Kienapple principle (Kienapple v. The Queen, (SCC), [1975] 1 S.C.R. 729),he was sentenced on only one count of fraud (count 31). Helgason argues that the trial judge erred in law by concluding that aconditional discharge would not satisfy the sentencing principle of general deterrence as opposed to a fine. 6 I would dismiss all the appeals, both those of the accused and those of the Crown; those relating to conviction as wellas sentence.

For the reasons explained below, I see no error in the reasons of the trial judge that would allow for appellate intervention. With respect to the Crown appeals on the acquittals, the restriction of a Crown appeal to a question of law dooms the appeals, since Ihave found that the issues raised by the Crown are of mixed fact and law. BACKGROUND FACTS 7 The Hecla Provincial Park (the Park) was established on August 27, 1969. In order to implement a development planfor the Park the Province of Manitoba expropriated the private land on the Island.

Since 1969, those ex-landowners have maintained aconstant desire to return to living on the Island. After the decision of Scott and Treasury Board (Canadian Heritage – Parks Canada),[1997] C.P.S.S.R.B. No. 29 (QL), not to include the Island as part of a National Lowlands Park, the provincial government decided torepopulate the Island. It was hoped that bringing people back would help to alleviate economic problems and promote tourism on theIsland. 8 In April 1997, the provincial government approved a program which would provide ex-landowners with a firstopportunity to secure cottage lots.

The program allowed ex-landowners, and their direct descendants, whose property had previouslybeen expropriated, to apply for a lease of a lot at a lower price than people obtaining a lease in a public draw. Former landowners whowere eligible to lease a lot would have to pay $5,000, and a person obtaining a lot through the public draw would have to pay $25,000. The deadline by which those with entitlement could apply for a lot for the price of $5,000 was set as December 31, 1999. 9 On September 26, 1997, the Manitoba Department of Natural Resources issued an information package concerningthe resettlement program.

Under the terms of the program, ex-landowners and their direct descendants, whose Island homes wereimpacted by the establishment of the Park, were invited to be part of the resettlement. The information package set out the requirementsfor applying for a lot. 10 Benson and Helgason were representatives of the Icelandic community on the Hecla Advisory Committee, thecommittee that assessed the initial applications under the program. The committee also had one other representative of the ex-landowners and three department staff as members.

The Hecla Advisory Committee was not formally established in documentationunder The Provincial Parks Act, C.C.S.M., c. P20, and no formal legal powers were given to it. 11 As a result of complaints regarding the administration of the resettlement program, the Office of the Auditor Generalconducted an investigation. Initially, Benson and Helgason, along with two others, Patricia Benson and Marlene Greenfield, werecharged with 31 counts of fraud, forgery and uttering contrary to ss. 380(1)(a), 367(

a) and 368(1)(

c) of the Code. The alleged victim ineach count is the Government of Manitoba. The lengthy trial commenced on September 15, 2008. 12 The Crown entered a stay of proceedings on all counts relating to Marlene Greenfield after the completion of a voirdire. At the conclusion of the Crown’s evidence, the Crown further advised that it would not be proceeding with two other counts. Anumber of counts were then dismissed following a motion for a directed verdict. Upon completion of the trial, Patricia Benson wasacquitted of all counts.

The Crown does not appeal the acquittals of Patricia Benson. 13 Benson’s appeal as to his convictions relate to the forgery of an application for a vacation home lease and subsequentassignment of that lease, purportedly signed by Shelly Scanlon. The Crown is appealing Benson’s acquittal of forging the assignment ofRuby Grimolfson’s interest in Lot 4 to Patricia Benson (count 7). Counts 14 and 21, also being appealed by the Crown, relate to a chargeof forgery of a lease as a result of submitting documents in the name of an eligible person to the government department administeringthe resettlement program.

This resulted in Conservation Lease No. 6498 being issued to the eligible person and to Benson’s sister, asjoint tenants. Benson was also charged with defrauding the government of that same lease in a value exceeding $5,000. 14 Helgason was charged with fraud for having submitted documents in the name of an eligible person, which resulted in alease being issued to him. He was also charged with forging and uttering documents that were submitted in the process of obtaining thelease (counts 22-31).

Those counts arise in connection with the acquisition of Lots 7 and 23, Plan 20002, and a “white ex-golf pro house”on the Island, in Hecla/Grindstone Provincial Park. 15 No evidence was called by the defence at trial. The Court called as a witness, Charles Gordon Prouse, the Director ofParks from 1988 until 2002. He served in that capacity at the time of the resettlement of the Island. Mr.

Prouse confirmed that theoriginal intent of the resettlement program was correctly described on the first page of the information package; that is, to provide one lotper original Island family, either to the original landowner or to their spouse, son or daughter. Indeed, if one looks only to the HeclaIsland Historic Lands Resettlement application form, one would conclude that those were the only individuals eligible.

The applicationform asks the applicant to check one of only two boxes, confirming that they are the original landowner or the spouse, son or daughter ofthe original landowner. 16 However, crucial to this case, Mr. Prouse testified that the actual lot administration procedures of this program weredifferent than one would expect by just reading the documents. He testified that when the resettlement program was implemented, thedepartment knew that the eligible ex-landowners were elderly, had moved elsewhere and that they either may not have the interest orfinancial ability to return to the Island.

For those reasons, the department expected that the list of eligible landowners might expandbeyond immediate family and that eligible landowners could “sponsor” someone else, such as a grandchild, a distant relative or a closefriend, to obtain the lot. To this end, Mr. Prouse testified, the lot administration procedures would permit the assignment of a lot toanother individual. Significantly, Mr. Prouse testified that the government was fully aware (and expected) that, as a result of

assignments, there would be situations where there would be more than one lot per family and that one lot per eligible family was impossible to administer. 17 According to Mr. Prouse, and important to the trial judge, was his testimony that the government’s prime concern was that an eligible ex-landowner knew of their entitlement, and gave it up voluntarily.

So, the initial application was to be made by an eligible person who met the criteria, and that person would have to stay on the lease until after a habitable structure was erected on the lot (the lock-up stage). 18 After that, the government was not concerned if the eligible person sponsored another person or assigned their interest in the lease to that other person, provided everything was done with informed consent and voluntarily. Mr. Prouse also testified that, if somebody signed a document with the consent of another, he would not have been concerned with falsification.

The intent was to avoid a bureaucratic process that was rigidly adhered to. 19 Mr. Prouse also testified that the Hecla Advisory Committee would meet to discuss an application if there was some uncertainty as to the eligibility of an applicant. If there was some uncertainty then there would be a discussion, and the input of the representatives of the Icelandic community on the committee would be important because of their personal knowledge or access to information from elderly relatives. Mr.

Prouse said neither Benson nor Helgason declared a conflict of interest or advised the committee that they had an interest in a particular lot, directly or through members of their family. 20 The trial judge delivered two sets of reasons, one on March 30, 2010 ( R. v. Benson (M.) et al. , 2010 MBQB 74 , 252 Man.R. (2d) 213) and one on June 9, 2010 ( R. v. Benson (M.) et al. , 2010 MBQB 131 , 254 Man.R. (2d) 107). When this court determines whether the trial judge erred, both sets of reasons must be examined.

I will be commenting in more detail on the judge’s reasons later in my analysis in relation to specific counts. BENSON 21 The trial judge acquitted Benson of two counts of forgery (counts 7 and 14). Those counts read: 7. That they, the said Marvin Benson and Patricia Benson at or near the City of Selkirk in the Province of Manitoba, between the 1 st day of May 2002 and the 3 rd day of December 2002 did unlawfully forge a document dated October 31, 1997 and signed by Ruby Grimolfson consenting to the assignment of her interest in Lot 4 of the Hecla Historic Village to Patricia Benson. 14.

That they, the said Marlene Greenfield and Marvin Benson at or near the City of Selkirk in the Province of Manitoba on or about the 7 th day of January 2000 did unlawfully forge Province of Manitoba, Manitoba Conservation Lease Number 6498. 22 He was convicted of counts 18 and 19, which also relate to forgery. Those counts read: 18. That he, the said Marvin Benson at or near the City of Selkirk in the Province of Manitoba between the 20 th day of September 2002 and the 4 th day of October 2002 did unlawfully forge an Application for a Vacation Home Lease for Lot 13 Hecla Historic Village purportedly signed by S.

Scanlon P/A on December 28, 1999. 19. That they, the said Marlene Greenfield and Marvin Benson at or near the City of Selkirk in the Province of Manitoba between the 20 th day of September 2002 and the 4 th day of October 2002 did unlawfully forge an Assignment Form regarding Lot 13 Hecla Village purportedly signed by S. Scanlon P/A on August 15, 2000. Count 7 23 Ruby Grimolfson, now deceased, was the daughter of an ex-landowner and was, therefore, eligible under the resettlement program to apply for a lease. Benson was charged with forging a document dated October 31, 1997 (Exhibit 21).

This document, signed by Ruby Grimolfson and witnessed by her homecare worker, Andrea Vogt, was one in which Ms Grimolfson consents to the assignment of her interest in Lot 4 to Patricia Benson. It is a document which was provided to the investigators for the Auditor General’s Office on December 3, 2002, by Patricia Benson. 24 The trial judge found that Benson had created Exhibit 21, and that while the document was dated October 31, 1997, the evidence is clear that it was not executed then, but was signed at a later date. Exhibit 21 reads: October 31, 1997

I, Ruby Grimolfson consent to the assignment of my interest and eligibility of Lot 4 of the Hecla Historic Village, Hecla Manitoba to myniece Patricia Benson. She is responsible for all costs and requirements associated with obtaining a lease on Lot 4.

She may execute all necessary documents onmy behalf that pertain to obtaining a lease and eventually assigning it to herself. 25 The trial judge accepted the evidence of Judy Fraser, Ruby Grimolfson’s daughter, that she heard her mother tellMarvin and Patricia Benson in 1996 or 1997 that she wanted them, or a family member, to have the lot and that her mother gave Marvinand Patricia Benson verbal permission to do whatever they had to do to obtain the lot. She said that Exhibit 21 was clearly what hermother intended.

Moreover, when the document was signed, it was signed before the application deadline and was actually signed byRuby Grimolfson. 26 Based on that evidence, the trial judge held that Exhibit 21 was not a false document and that there was no intention ofBenson to deceive.

Instead, the document merely evidenced a verbal agreement which took place in 1997. 27 Here is the trial judge’s reasoning for the acquittal on count 7 from his June decision (at para. 25): While I have little doubt that Marvin Benson created Exhibit 21 and sent it to Ruby Grimolfson to sign, I am not convinced beyond areasonable doubt that Exhibit 21 is a false document or that Marvin Benson knew that Exhibit 21 was false when it was made.

Thedocument memorializes the arrangements made with Ruby Grimolfson in 1996 or 1997 and prior to the deadline when RubyGrimolfson’s family decided that it was not going to take a lot. [emphasis added] 28 First, it is the Crown’s submission that the trial judge erred when he held that Exhibit 21 was not a false document. The Crown submits that the inclusion of the false date was for the purpose of misleading investigators and, therefore, the document wasfalse in a material particular. It relies on the Supreme Court of Canada decision in Gaysek v.

The Queen, (SCC), [1971]S.C.R. 888, and particularly on the comment of Ritchie J., writing for the majority in a 3:2 decision (at p. 896): ….

I am of the opinion that a document which is false in reference to the very purpose for which the document is created is certainly onewhich is false in a material particular. …. 29 Alternatively, the Crown argues that the trial judge erred in law in failing to apply s. 366(2) of the Code, whichenlarges the definition of a false document to include “adding to it a false date, attestation, seal or other thing that is material.” 30 Benson argues that the facts in the instant case are distinguishable from the situation in Gaysek, “where the lie on thedocument went directly to the purpose of the document.” The content of Exhibit 21 is not pretending to be anything other than what itis.

The trial judge agreed with Benson that the purpose of the document was simply to “memoralize” the arrangements made withGrimolfson in 1996 or 1997, and not to deceive the investigators. 31 Since this is a Crown appeal, one must also keep in mind that the Crown is allowed to appeal an acquittal only on aquestion of law. 32 Before I can determine whether the errors alleged are questions of law or questions of mixed fact and law, a shortdiversion into the minefield that is the law of forgery is necessary. The Law of Forgery 33 Forgery is defined in s. 366(1) of the Code as: Forgery 366.

(1) Every one commits forgery who makes a false document, knowing it to be false, with intent (

a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or

(

b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not. Forgery differs from uttering, although the same document may be involved in each offence. Forgery is the making of the document; uttering is the use of the document. 34 Section 366(2) describes the making of a false document: Making false document

(2) Making a false document includes (

a) altering a genuine document in any material part; (

b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or (

c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way. 35 A “false document” is defined in s. 321 of the Code as: “false document” means a document (

a) the whole or a material part of which purports to be made by or on behalf of a person (

i) who did not make it or authorize it to be made, or (ii) who did not in fact exist, (

b) that is made by or on behalf of the person who purports to make it but is false in some material particular, (

c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made. 36 Under s. 366(3), forgery is complete as soon as a document is made with the knowledge and intent described in s. 366(1) , even though the person who makes the document does not intend that any particular person should be induced by the belief that it is genuine, to do or refrain from doing anything. 37 Under s. 366(4), forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, as long as the document is such as to indicate that it was intended to be acted on as genuine. 38 The onus rests on the Crown to prove beyond a reasonable doubt that (see R. v.

Morris , [2006] O.J. No. 675 (QL) at paras. 55-56 (S.C.J.) ): 1. the accused made the document; 2. the document in question is a false document. A false document includes a material alteration to a genuine document; 3. the accused knew the document to be false; and

4. the accused intended that the document be acted upon by another to their prejudice or that they would be induced by thedocument to do or refrain from doing anything. 39 The trial judge made a finding of fact that it was Benson that created Exhibit 21 and put in a false date. So, is theassignment, Exhibit 21, a false document by virtue of the inclusion of the false date by Benson? 40 Historically, the falsity required by the crime of forgery had to relate to the document itself, and not to any informationcontained in the document.

So, at common law, a false document was not simply a document that contained lies, but rather it was “adocument that told a lie about itself” (see Morris Manning, Q.C. & Peter Sankoff, Manning, Mewett & Sankoff: Criminal Law, 4th ed.(Markham: LexisNexis Canada Inc., 2009) at 997, and R. v. Winsor (1865), 10 Cox C.C. 276 (Q.B.)). 41 However, in Gaysek, the case relied on by the Crown, the Supreme Court of Canada focussed on the Code provisionsrather than the common law of forgery. In that case, the accused was a principal in a firm that had a contract to take periodicinventories.

It was alleged that he had falsified inventory sheets or records, which were prepared in his writing, respecting the inventoryon certain dates. The trial judge directed a verdict of not guilty on a forgery charge because the inventory sheet was not a false documentunder the common law approach, but was merely a fraudulently falsified inventory sheet. 42 Ritchie J., in considering the definition of a false document in s. 321, held differently.

He began by noting that ss.366(2) and 321 work together, writing (at p. 893): The meaning described in s. 309(2) [now s. 366(2)] does not, in my opinion, exclude the primary meaning given to the words “falsedocument” by s. 268(e)(ii) [now s. 321], but merely has the effect of enlarging the meaning of the words so as to cover documents whichmight not otherwise be included. 43 In R. v. Ogilvie (1993), (QC CA), 81 C.C.C. (3d) 125 (Que. C.A.), Fish J.A. (as he then was)explained what he believed Gaysek stood for.

Fish J.A., writing for the majority, began by candidly noting that the question of“[w]hether a document, to constitute a forgery, must not merely lie but lie about itself has for many years remained, in Canada and inEngland, a daunting question” (at p. 134). However, he went on to say (at pp. 138-39): … I do not consider that Gaysek stands for the proposition that “a document which merely tells a lie” (Mewett and Manning, ibid.) mustbe treated as a false document, or still less a forgery, for the purposes of ss. 366 and 368 of the Criminal Code.

Rather, in my respectful view, the majority opinion in Gaysek, like the subsequent judgment of our Court in Cale [R. v. Cale, [1978 C.A.136], and the more recent judgment of the Ontario Court of Appeal in Nuosci [R. v.

Nuosci (1991), (ON CA), 6 O.R.(3d) 316], stands for the more limited proposition that “a document which is false in reference to the very purpose for which it wascreated” is one that is false in a material particular, within the meaning of s. 321 of the Criminal Code. 44 So, in order to be a false document, the document in question must not simply “tell a lie”; it must be false in relation tothe purpose for which it was created. 45 In this case, the trial judge held that the purpose of this document in this situation was to “memorialize” an agreementreached earlier and in this situation the document was not false.

The trial judge did not accept the Crown’s argument, on this count atleast, that Benson had another ulterior purpose. 46 If one accepts the finding of fact of the trial judge as to the purpose of the document, then I agree with the conclusionof the trial judge that Exhibit 21 does not meet the requirements of a false document.

So, for example, if one compares Exhibit 21 withthe forgery from the Ogilvie case, where the letter was “not in any real sense from the Department,” and contrasts that with Exhibit 21,we see that the assignment was signed by Ms Grimolfson and did evidence her true intentions with respect to the property in question. 47 This conclusion may also be buttressed by comparing the facts of this case to other cases that have considered thenature of a false document. 48 In R. v. Nuosci (1991), (ON CA), 6 O.R. (3d) 316 (C.A.), leave to appeal to S.C.C. dismissed,[1992] S.C.C.A.

No. 69 (QL), the accused had issues with a politician. In an effort to discredit that politician, he altered a cheque for$300 by changing it to $30,000. He then made the cheque payable to the politician’s election campaign and gave photocopies of thecheque to several people, including a police officer. He was convicted of forgery and appealed. 49 In affirming the conviction, Morden A.C.J.O. wrote (at p. 327): … [I]t can reasonably be said that the photocopy in this case is false in reference to the very purpose for which it was created. It wascreated to purport to be a copy of a cheque signed by P.

Meffe dated November 8, 1985 in the amount of $30,000 payable to the Nick DiGiovanni Campaign and endorsed on the back by Nick Di Giovanni, when, in fact, it was not a copy of a cheque signed by P. Meffe orone having any of these features. It was, accordingly, false in more than one material particular.

50 In R. v. McMillan (G.) (2003), (ON CA), 176 O.A.C. 215, a policeman fabricated an unsignedstatement, written on police letterhead, which purported to be from the accused and claimed that the accused was being extorted. Theletter was then shown to an accomplice in order to get his cooperation, and thereby obtain incriminating evidence against the accused.

MacPherson J.A. reasoned (at para. 31): …. … [T]he statement was “false in reference to the very purpose for which it was created.” That is, the statement purported to be anextortion complaint filed by McMillan against Deraiche whereas McMillan had made no such complaint. 51 In R. v. Semeniuk, 2005 BCSC 1473 (QL), aff’d on other grounds, 2007 BCCA 399, 245 B.C.A.C. 110, the accusedwas charged with fraud and forgery after obtaining appeal books and transcripts for his appeal, without paying in advance, by a forgedorder through a non-existent law firm.

In convicting on the forgery count, Smith J. wrote (at para. 125): I find that the October 2, 2002, letter from Lindsay Sherman & Gardner Legal Service Corporation in its representation that the entityLindsay Sherman & Gardner was a law firm made a representation as to a material particular and that it was false in that regard. Thepoint is not that the sender told lies in the body of the letter. Undoubtedly, the sender truly did wish to order the transcripts.

Rather, theletter did tell a lie about itself by representing that it was from a law firm when it was not, just as if it has represented that it was from asignatory who had not in fact signed it. The document was false in reference to the very purpose for which it was created. 52 The facts of each of the above cases easily lead to the conclusion that the relevant documents in those cases were falsein reference to the very purpose for which they were created. In Nuosci, the cheque was not signed by the maker and the face amountwas altered, all in an effort to discredit the purported payee.

In McMillan, the statement from the accused was a total fabrication and wasmade for the purpose of exerting legal pressure on another. In Semeniuk, the forgery was from a law firm that did not exist and wasmade to avoid the upfront payment of court fees. 53 The above cases may be compared with count 7 here, where the evidence indicates that Ms Grimolfson wanted theBensons to have the property and did, in fact, sign the document.

Clearly, almost all of the document was true and it accurately recordedthe understanding between Ms Grimolfson and the Bensons, albeit with a false date. 54 Gaysek enlarged the definition in the Code as to what constitutes a false document by specifically reading it inconjunction with s. 366(2) of the Code. As reproduced earlier, that

section specifically indicates that making a false document includes“adding to it a false date, attestation, seal or other thing that is material.” In this case, there is no question that a false date was added byBenson. 55 There is little case law on the subject of the addition of a false date in relation to a charge of forgery. Ultimately, theavailable cases appear to suggest that it boils down to whether the date is truly material to the fundamental nature of the document. 56 So, for example, in R. v. Wells (1939), 27 Cr. App.

R. 72 (C.C.A.), a deed of settlement was made by the accused, infavour of his son, and contained a power of revocation. Tax changes were later enacted and the date on the document was antedated toreflect an irrevocable power of revocation. In affirming a conviction for forgery, Lawrence J. wrote (at p. 78): …. After the introduction of the Finance Bill, 1936, the time of making a settlement on children irrevocable was the most materialmatter to be decided upon. The date was, in our judgment, material to the intention of the parties and to the purposes of the deed.

Indeed, the only reason for stating the time falsely in the present case was because the time was thought to be, and in all probabilitywould be, all-important. Where a deed purports to be executed at a certain false time and the only reason for choosing that false time isto obtain an advantage to the parties to the deed by reason of that false time, it seems to us that it cannot be said that the time isimmaterial. 57 While it is a civil decision, guidance in this area may also be found in Groner v. Lake Ontario Portland Cement Co.(1960), (ON CA), 23 D.L.R. (2d) 602 (Ont. C.A.), rev’d (SCC), [1961] S.C.R. 553.

In that case, theplaintiff was hired by the defendant company. Problems later arose and the plaintiff tendered his resignation, but later orally withdrewhis resignation after meeting the president of the defendant company. The plaintiff reduced this oral agreement in writing many monthslater and, after then obtaining the president’s signature, put a false date on it. He was eventually fired and sued for wrongful dismissal. 58 Morden J.A., concurring at the Court of Appeal, began by citing the decisions in R. v.

Ritson (1869), Law Rep. 1C.C.R. 200, and Wells, and noted that “[i]n both these cases, the date governed the effect and, therefore, validity of the instrument” (at p.619). He continued (ibid.): In the case at bar, in view of the finding that the written agreement correctly embodied the terms of the oral contract made on September

27, 1956, the addition of the date in no way altered the rights of the parties. Its only effect was to arouse the suspicion of the defendant’sofficers that no agreement had in fact been made - a suspicion which the trial Judge found was without substance. In the circumstancesdisclosed by the evidence in this case I have come to the conclusion that the addition of the false date was immaterial. This conclusionalso disposes of Mr. Williston’s submission that the document was a forgery. This would have been the case only if the addition of thefalse date was a material addition: Cr.

Code, s. 309(2)(b). [emphasis added] 59 The Supreme Court reversed the decision. They did not, however, comment on the Code or the substantive law offorgery, preferring to simply note that the plaintiff’s actions, including lying under oath, demonstrated “the revelation of character whichjustifies the dismissal” (at p. 564). 60 In Morris, the court looked at whether a change in the signature on the lease, by whiting-out the original signature,constituted a change in a material particular. It established that such a determination will be fact-specific.

In that case, the court declinedto find the signature a material particular and, therefore, it did not meet the definition of a false document. 61 Consequently, it would appear that (R. v. Hannah (1919), (SK CA), 46 D.L.R. 122 at 124 (Sask.C.A.)): … [I]f the legal rights and obligations of the parties (if effect were given to the instrument as altered) would be the same as if there hadbeen no alteration in the instrument, the alteration is not a material one. 62 Thus, the antedating of Exhibit 21 did not affect the legal rights, obligations and, indeed, intentions between Bensonand Ms Grimolfson.

In this case, the trial judge held that the very essence, or most material purpose of the document, was to“memoralize” the agreement between Ms Grimolfson and the Bensons. More specifically, the primary purpose was to prove that MsGrimolfson approved of the devolution of whatever interest she rightly had in the Island property. As well, the insertion of the false datedid not make the document different from what in reality it was, an assignment from Ms Grimolfson freely given.

In other words, thedate of the document was not an essential component in light of the found purpose of the document. 63 I understand that it is the argument of the Crown that the trial judge’s foundational mistake lay in viewing Exhibit 21from the wrong “perspective” and that the date was, in fact, very material. That argument goes back to the Crown’s view that thepurpose of the document was not to memoralize anything, but to mislead the investigators. The Crown argues that the trial judgemisapprehended the application of s. 321 of the Code because the terms of that

section provide that a false document means a documentthat is made by or on behalf of the person who purports to make it, but is false in some material particular. The false material particularin this document is the date. However, each of these interlaced issues, whether the date was material to this document and whether thedocument was false as to its fundamental nature, are, at best, questions of mixed fact and law and, consequently, not open to appeal bythe Crown. 64 The trial judge found that there was no false document and that could have ended the matter.

However, he went on toalso find that he was not convinced beyond a reasonable doubt that “Benson knew that Exhibit 21 was false when it was made” (at para.25). One of the elements that must be proven beyond a reasonable doubt by the Crown is intent. On appeal, the Crown argued that thetrial judge also erred in his finding with respect to intent. 65 The Crown submits that the very purpose for which the document was created was to mislead the investigators for theAuditor General’s Office into concluding that it was created on October 31, 1997.

Viewed from that perspective, the Crown submits thedocument was a false document which Benson knew to be false, and intended to induce the investigators to believe that it was genuineand refrain from inquiring further into whether fraudulent activity was involved in obtaining Lease No. 6450. 66 Section 366(1) refers to one of two “intents.” As reproduced earlier, the

section states: Forgery 366.

(1) Every one commits forgery who makes a false document, knowing it to be false, with intent (

a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or (

b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada ornot.

67 Although the

section has two parts to it, what seems accepted by the jurisprudence is that both sections require at leastan intent to deceive. Prejudice need not actually result so long as there was intent that the document be used or acted upon as genuine. Neither must there be an intent to cause harm. See R. v. Sebo (1988), 1988 ABCA 200 , 87 A.R. 141 (C.A.), followed in R. v.Sommani (M.), 2007 BCCA 199, 239 B.C.A.C. 126. As well, the intent must have an element of “moral blameworthiness” to it asopposed to mere carelessness or negligence. See R. v. Couture (1991), (QC CA), 64 C.C.C. (3d) 227 (Que.

C.A.). 68 Several of the cases go further and argue that not only must there be an intent to deceive, but also an intent to defraud. See, for example, R. v. Angrignon, [1996] O.J. No. 1344 (QL) (Gen. Div.), and Morris, where Kiteley J. canvasses many of the decisionson this point and highlights the varying views of the requisite mens rea for forgery. 69 I do not think it is necessary for me to review the law or to decide on whether an intent to deceive is sufficient, orwhether an intent to deceive must be coupled with an intent to defraud.

As was stated earlier, the trial judge found on the facts thatBenson’s intent was to memorialize an earlier verbal agreement, not to deceive. 70 Moreover, the intent to deceive must be coupled with an intent that the document be used to someone’s prejudice, orthat a person be induced to act in a certain way. In the case at bar, the evidence was that the government was not concerned if an eligibleperson assigned their interest as long as it was with informed consent and voluntary. The government’s intent was to avoid a rigidbureaucratic process.

That evidence should be coupled with the fact that Benson was a member of the Hecla Advisory Committee andknew of the government’s attitude. Given that evidence, it cannot be said that Benson undertook his action with the intention of foolingthe government for his “nefarious purpose or advantage” (Manning & Sankoff at p. 867). 71 Even if the trial judge was wrong on his findings of fact, the issue is, at best, one of mixed fact and law. The Crown islimited to an appeal on a question of law alone. Counts 18 and 19 72 Benson was convicted of two counts of forgery contrary to s. 367(

a) of the Code. Those counts read: 18. That he, the said Marvin Benson at or near the City of Selkirk in the Province of Manitoba between the 20th day of September 2002 and the 4th day of October 2002 did unlawfully forge an Application for a Vacation Home Lease for Lot 13 Hecla Historic Villagepurportedly signed by S. Scanlon P/A on December 28, 1999. 19.

That they, the said Marlene Greenfield and Marvin Benson at or near the City of Selkirk in the Province of Manitoba between the 20th day of September 2002 and the 4th day of October 2002 did unlawfully forge an Assignment Form regarding Lot 13 Hecla Villagepurportedly signed by S. Scanlon P/A on August 15, 2000. 73 Count 18 relates to Exhibit 28, and the trial judge concluded as follows (at para. 52): In my view, Exhibit 28 is a false document.

The totality of the evidence relating to this count persuades me that Exhibit 28 wasbackdated by Marvin Benson to induce the [Auditor General’s Office], by the belief that it was genuine, to conclude that Jean Plant,through her power of attorney, Shelly Scanlon, had applied for a lease on December 28, 1999 and that further investigation was notwarranted. [emphasis added] 74 Count 19 relates to Exhibit 27, and the trial judge concluded as follows (at para. 60): In my view, Exhibit 27 is a false document.

The totality of the evidence relating to this count persuades me that Exhibit 27 wasbackdated by Marvin Benson to induce the [Auditor General’s Office], by the belief that it was genuine, to conclude that Jean Plant,through her power of attorney, Shelly Scanlon, had assigned all of her right, title and interest in the lease to Marlene Greenfield onAugust 15, 2000, and that further investigation was not warranted. [emphasis added]

75 Since Benson argues that the trial judge was inconsistent in his application of the law to the facts in the various counts with respect to forgery, it is necessary to examine the “totality of the evidence” in relation to the above counts.

In my opinion, it is that totality that supports the trial judge’s conclusion that Exhibits 27 and 28 are false in relation to the very purpose for which they were created and, consequently, the reason that there was a conviction on counts 18 and 19, as opposed to an acquittal on count 7. 76 As a result of complaints regarding the administration of the resettlement program, the Auditor General’s Office conducted an investigation.

Benson was interviewed by representatives of the Auditor General’s Office on October 4, 2002, at which time he submitted two documents which he had arranged for completion shortly before that date.

Benson was found guilty of forging those two documents, an application for a vacation home lease from Jean Plant dated December 29, 1999 (Exhibit 28), and a department assignment form from Jean Plant to Marlene Greenfield (Exhibit 27). 77 The Hecla Island Resettlement Application Form (Exhibit 28) was signed by Shelly Scanlon, who had power of attorney for Jean Plant, a few weeks prior to October 2002, although it is dated “December 29, 1999,” and thus, was outside the time limit set for applications.

The date was on the form when Ms Scanlon signed it, and it was signed at Benson’s request. 78 With respect to this document, the trial judge held that it was a false document (at para. 54): I am satisfied beyond a reasonable doubt that Marvin Benson made Exhibit 28, that he knew it was false when it was made, and that he had the intent described in s. 366(1) of the Criminal Code . …. 79 Similar circumstances apply to count 19. Count 19 charges Benson with forging an Assignment Form regarding Lot 13 Hecla Village, purportedly signed by Ms Scanlon, as power of attorney, on August 15, 2000 (Exhibit 27).

Although the Assignment Form (Exhibit 27) appears to have been signed by Ms Scanlon on August 15, 2000, it was in fact signed a few weeks prior to October 2002. This document was also provided by Benson to Ms Scanlon for signature. The date “Aug. 15, 2000” opposite Ms Scanlon’s signature was inserted by Ms Scanlon at Benson’s request when she signed the document in 2002. The assignment form was another document provided by Benson to the Auditor General’s Office on October 4, 2002.

The evidence of Ms Scanlon with respect to this document was also that she executed it because she was doing what her aunt wanted her to do, but there was no evidence of any verbal agreement that took place before December 31, 1999. 80 The trial judge found that Exhibit 27 is a false document.

He held, similar to his conclusions with respect to Exhibit 28, that (at para. 61): “I am satisfied beyond a reasonable doubt that Benson made Exhibit 27, that he knew it was false when it was made, and that he had the intent described in s. 366(1) of the Criminal Code .” 81 The judge held that the totality of the evidence persuaded him that Benson backdated both documents, the application for a lease and the assignment of that lease to Marlene Greenfield a few weeks prior to October 2002, in order to convince the Auditor General’s Office to conclude that Jean Plant, through her power of attorney, Ms Scanlon, had applied for a lease of Lot 13 on December 28, 1999, that she had assigned all of her interest in that lease on August 15, 2000, to Marlene Greenfield, and that further investigation was not warranted.

He, therefore, convicted Benson on two counts of forgery. 82 The key difference between these convictions and Benson’s acquittal on count 7 is that with respect to count 7, there was evidence, which the trial judge accepted, that there was a verbal agreement in 1996 or 1997 whereby Ms Grimolfson agreed to the assignment of her interest to Patricia Benson and authorized the execution of all necessary documents.

There was evidence that Ms Grimolfson signed that document affirming that authorization. 83 That document was backdated, but the court found not with an intention to deceive, but with an intention to memorialize a verbal agreement reached several years earlier.

As well, there was evidence that the form was indeed signed by Ms Grimolfson before the application deadline had expired. 84 With respect to the forgery convictions, while Jean Plant may have been content to have the Benson family receive her lease, there is no evidence of such an agreement or authorization, verbal or written, before the deadline for application expired, nor is there any evidence of Jean Plant’s signature or Ms Scanlon’s signature on any of the documents executed before December 31, 1999. 85 The Hecla Island Resettlement Application Form in the name of Jean Plant (Exhibit CC) is not dated and does not have any signature on it.

An Application for a Vacation Home Lease in Jean Plant’s name (Exhibit 19) is dated December 21, 1999, and was indeed submitted to the department on that date. However, according to the evidence of Ms Scanlon, her aunt Jean Plant’s signature is not on it and Ms Scanlon had nothing to do with the document. Next, Lease No. 6498 has two signatures at the end of it, that of Marlene Greenfield and that of Jean Plant, and was dated January 7, 2000.

Again, the evidence indicated that the signature on the lease was not that of Jean Plant and Ms Scanlon was not aware of it. 86 So, the entire process was false from the start. The original Application for a Vacation Home Lease on December 21, 1999, was not signed by either Jean Plant or Ms Scanlon, or authorized by either of them. 87 The second Application for a Vacation Home Lease is dated December 29, 1999, but was not signed by Ms Scanlon until around October 2002. As the evidence indicates, Exhibit 28 did not “memorialize” Jean Plant’s intentions in the same way as Exhibit 21 did for Ms Grimolfson.

So, for example, the trial judge found as a fact that Jean Plant did not sign the Application for a Vacation Home Lease that was submitted on December 21, 1999, and which eventually resulted in the issuance of the Lease. 88 In fact, there were two Assignment Forms, both dated August 15, 2000. The first Assignment (Exhibit DD) was submitted to the department on January 8, 2002, but Ms Scanlon testified that she did not recognize any of the signatures on this first Assignment and none of them were her aunt’s signature. The second Assignment, again dated August 15, 2000, is Exhibit 27 and, again,

it is this document that underlines count 19. With respect to this document, the trial judge found that Benson provided it to Ms Scanlonfor signature a few weeks prior to October 2002, when he was due to meet with the Auditor General’s Office. He also found that thedate “Aug. 15, 2000” opposite Ms Scanlon’s signature was inserted by Ms Scanlon at Benson’s request when she signed Exhibit 27 in2002.

Thus, as opposed to Ms Grimolfson, Jean Plant or Ms Scanlon on her behalf, never signed an Application for a Vacation HomeLease before the deadline. 89 Of course, Benson argues that Ms Scanlon, with her power of attorney, was simply “doing what her Aunt wanted her todo” and, accordingly, there was nothing untoward in Ms Scanlon signing Exhibits 27 and 28 long after the fact. Once again, the judgereached an opposite conclusion based on the “totality of the evidence,” such as the fact that, unlike Ms Grimolfson, none of thedocuments ever contained Jean Plant’s actual signature.

There was clearly a false signature in the original application (Exhibit 19) and,therefore, no evidence of not only mere intentions, but an actual verbal agreement and authorization to apply for a lease and then assignit. 90 In conclusion, the trial judge had evidence from which he was entitled to infer that with respect to count 18 and Exhibit28, the documents were created for the purpose of inducing the Auditor General’s Office to believe that Jean Plant, through her power ofattorney, Ms Scanlon, had applied for a Lease on December 28, 1999, and that further investigation was not warranted.

It is important tonote here the finding that before that date, there was an application for a lease which resulted in the issuance of a lease and which theevidence confirmed contained a false signature purporting to be that of Jean Plant. 91 With respect to count 19 and Exhibit 27 (the second Assignment), the trial judge was entitled to conclude based on theevidence that its purpose was, similar to Exhibit 28, to deceive the investigators. Crucial to this conclusion is the fact that there wasalready an assignment filed (Exhibit DD, the first Assignment) on January 8, 2002, which also contained a false signature.

Under suchcircumstances, and considering the totality of the evidence, there was no error and I would not intervene. Count 14 92 Count 14 charges Benson with forging Province of Manitoba Conservation Lease No. 6498. This count reads asfollows: 14. That they, the said Marlene Greenfield and Marvin Benson at or near the City of Selkirk in the Province of Manitoba on or about the 7th day of January 2000 did unlawfully forge Province of Manitoba, Manitoba Conservation Lease Number 6498. 93 I find this count the most troubling.

As has already been mentioned, this lease had two signatures at the end of it, thatof Marlene Greenfield and Jean Plant. The evidence of Ms Scanlon was that the signature was not that of Jean Plant, nor did she knowanything about it. So, who forged Jean Plant’s signature on this document? The trial judge held that the Crown had not proven beyond areasonable doubt that it was Benson.

Since this is a Crown appeal, the Crown must show that the trial judge erred in law. 94 It is the argument of the Crown that the trial judge misapprehended the law regarding the circumstances under which aperson is authorized to sign another’s signature and unduly extended the application of the principle in the case of R. v. Foley (E.F.)(1994), (NL CA), 120 Nfld. & P.E.I.R. 24 (Nfld. C.A.) to circumstances not addressed in that situation. In Foley, theaccused had received authorization to sign Mr. Tobin’s signature to the document before he signed Mr.

Tobin’s name to it. 95 In the instant matter, while Jean Plant’s assignment of interest in her eligibility for a lease was made on December 28,1999, authorization to execute all necessary lease and lease assignment documents on her behalf was not given to Marlene Greenfield(and not to Benson) until October 2002, more than two years after the lease was signed. 96 As I indicated earlier, I believe it is that fact that differentiates the Grimolfson matter from the Plant matter, and led tothe conviction on counts 18 and 19. 97 The Crown then argues that logically there should be a conviction on count 14.

However, I believe the acquittal oncount 14 rests on the trial judge’s finding of fact, and not on his application of the law. 98 In Lease No. 6498, the lessee’s signature above Marlene Greenfield’s signature is not Ms Plant’s or Ms Scanlon’ssignature. However, the trial judge made findings of fact in regard to the lease based on the evidence adduced at the trial. Based on thetestimony of a number of witnesses, the trial judge found that he was unable to determine with any certainty who signed the documentand what occurred in regard to witnessing the signature.

He dismissed the charge because he was left with a reasonable doubt as towhether Benson or someone else was authorized to make the lease, whether the lease was a false document and whether Benson knewthat the lease was false when it was made.

In this case, the trial judge was tasked with making findings of fact as to the circumstancesleading to the creation of this document, and he was not satisfied beyond a reasonable doubt. 99 The Crown advanced a further argument that the trial judge’s decision on this count was inconsistent with his findingthat the procedure Benson followed in obtaining the lease was not an honest procedure. The trial judge stated (at para. 34): I am sympathetic to the Crown’s submission that the procedure followed was not an honest procedure.

However, Marvin Benson was onthe eligibility committee, and he must have been aware of the Government’s position as described by Mr. Prouse.

100 That paragraph must be read in context with the rest of the reasons and with the findings of the trial judge. A close reading of the decision makes clear that the trial judge did not approve of the ethical conduct of Benson, but found that the conduct fell short of being criminal. HELGASON Counts 22, 23, 24 and 25 101 These counts read as follows: 22.

That they, the said Warren Helgason and Marlene Greenfield at or near the City of Winnipeg in the Province of Manitoba on or about the 29 th day of November 1997 did unlawfully forge a Hecla Island Historic Lands Resettlement Application Form of Richard Cawley. 23.

That they, the said Warren Helgason and Marlene Greenfield at or near the City of Winnipeg in the Province of Manitoba between the 29 th day of November 1997 and the 3 rd day of December 1997 did unlawfully knowing that a document was forged, to wit: a Hecla Island Historic Lands Resettlement Application Form of Richard Cawley, cause the Government of Manitoba to act on it as if it were genuine. 24.

That they, the said Warren Helgason and Marlene Greenfield at or near the City of Winnipeg in the Province of Manitoba between the 27 th day of July 1998 and 24 th day of November 1998 did unlawfully forge an Assignment Form respecting Lot 23 Hecla Historic Village. 25.

That they, the said Warren Helgason and Marlene Greenfield at or near the City of Winnipeg in the Province of Manitoba between the 27 th day of July 1998 and 24 th day of November 1998 did unlawfully knowing that a document was forged, to wit: an Assignment Form respecting Lot 23 Hecla Historic Village, cause the Government of Manitoba to act on it as if it were genuine. 102 Richard Cawley was an original landowner at the time of expropriation and was eligible to apply for the lease of a lot on the Island. He resided in Montreal.

He became aware of the resettlement program as a result of a telephone call he received in November 1997 from someone who identified himself as Helgason. Mr. Cawley and the Helgason family were known to each other through the Hecla community. Helgason explained the resettlement program and Mr. Cawley said he had no interest in the property. Helgason told Mr. Cawley that he would be sending him a fax which Mr. Cawley was to sign and return. The document would indicate that Mr.

Cawley no longer had an interest in the property and that he had assigned whatever interest he had to Helgason. 103 As a result of that telephone conversation, Helgason did indeed fill out a resettlement application form in Mr. Cawley’s name and send it in to the department with a cash deposit (Exhibit 12), with Helgason’s name and address on it on December 3, 1997. 104 As well, Mr. Cawley did sign and forward to Helgason a document (Exhibit 11) dated December 2, 1997, which confirmed that Helgason had paid the initial deposit fee, that he, Mr.

Cawley, consented to the assignment of Lot 23 to Helgason, and that he relinquished all further interest in the lot. Mr. Cawley confirmed this on cross-examination at trial. However, he also testified that he never authorized Helgason to sign any other documents on his behalf, or to sign his name. 105 Yet, Mr. Cawley also testified that he had little memory of the telephone conversation and did not pay a lot of attention to it at the time. When he spoke to the RCMP, he told them that he might have given Helgason an implied consent or verbal consent that he could have the lot. At trial, Mr.

Cawley confirmed that he really did not remember what Helgason said. 106 In November 1998, a department Assignment Form (Exhibit 13) in the name of Richard W.V. Cawley was submitted to the department. In that document, Mr. Cawley assigned all of his right, title and interest in the lease for Lot 23 to Helgason. Mr. Cawley did not complete this document, and his signature is not the signature above the words “lotholder signature.” Mr. Cawley does not know, and did not recognize, the witness to the lotholder’s signature – “B.

Grainger.” On June 10, 1999, the Government of Manitoba issued Lease No. 6261 for Lot 23 (Exhibit

Z) directly to Helgason. 107 Counts 22 and 23 charge Helgason with forging and uttering the Hecla Island Historic Lands Resettlement Application Form which was in the name of Mr. Cawley, but prepared by Helgason. The trial judge found that it is possible that Mr. Cawley authorized Helgason to make the application form and Helgason reasonably “believed he had authority to make it” (at para. 75), and applied Foley to conclude that the document was therefore not a false document. 108 With respect to those counts, the Crown argues that the trial judge misapprehended the application of s. 321 of the Code .

The Crown submits that the trial judge erred by failing to apply the reasoning in the Gaysek decision that a document which is false in reference to the very purpose for which it was created is one which is false in a material particular. The application was a false document because it was created to falsely indicate that Mr. Cawley was applying for a lease, when in fact he was not.

109 Helgason submits that since the trial judge found that “it is possible that [Richard] Cawley authorized Warren Helgason to make Exhibit 12” (at para. 75), Exhibit 12 was not a false document as defined in the Code . The court had evidence that the application process was designed to be utilized by those eligible ex-landowners who would make applications, in their name, with the intention of assigning a lot to another individual. In this case, the trial judge, after hearing the evidence of Mr.

Cawley, concluded that it was possible “that [Richard] Cawley authorized Warren Helgason to make Exhibit 12 and that Warren Helgason reasonably believed he had authority to make it” ( ibid .). 110 In acquitting Helgason on these counts, the trial judge relied heavily on the Foley case. In that case, the accused agreed to exchange his motor vehicle with Mr. Tobin in a one-up trade with no cash exchanged. Mr. Tobin did not provide registration documents to Mr. Foley at that time. Registration documents were later provided to Mr. Foley, but the required notice of sale

section was not signed by Mr. Tobin as relations had apparently deteriorated between the two men. According to the evidence of Mr. Foley, Mr. Tobin eventually gave Mr. Foley permission to sign Mr. Tobin’s name on the notice of sale. Mr. Foley then signed the notice of sale and backdated it. He also wrote on the form that the sale price was $1,000 even though the parties had estimated the value of each vehicle at the time of the trade as $3,800. 111 The upshot of the foregoing was the laying of a charge of forgery against Mr.

Foley, which accused him of having (at para. 10): ... knowingly made a false document, to wit: a motor vehicle registration notice of sale by forging the endorsement of Benedict Tobin thereon, with intent that it be acted upon as genuine, and did thereby commit forgery …. 112 Despite finding, on a balance of probabilities, that Mr. Tobin told Mr. Foley that he could sign his name to the notice of sale, Mr. Foley was convicted of forgery by the trial judge. On appeal, an acquittal was entered, the Newfoundland Court of Appeal held (at para. 1): ….

The principal issue raised in this appeal is whether a person commits this crime where he or she signs the name of another to a document with the authorization of the individual for whom the document purports to be made. [emphasis added] 113 And later (at paras. 4-5): According to Mr. Foley’s version of events his request for Mr. Tobin’s signature had been refused on several occasions. As time passed he stated that he became concerned over the lack of registration of the truck in his name. Finally, according to him, on May 14, 1992, he spoke by telephone to Mr.

Tobin who gave him permission to sign his name to the notice of sale . Mr. Foley recounts that, acting on this authorization , he filled out the notification form on the back of the permit and, dating the instrument May 1 instead of the actual date of May 14, 1992, signed Mr. Tobin’s name to it. …. [ emphasis added] 114 And later on (at para. 53): In

summary, a person does not commit the crime of forgery where he or she signs the name of another to a document with the authorization of the individual for whom the document is made . This is because no “false document” within the meaning of s. 321 of the Code is thereby created. Hence there is no actus reus upon which to found a charge. [emphasis added] 115 The cases that have considered Foley have been cases where there was a linear, or direct, authorization between the person authorizing that his or her signature be used, and the alleged forger.

See Moss (Bankrupt), Re , 2009 MBQB 21 at para. 59, 235 Man.R. (2d) 286 , and rev ’ d 2010 MBCA 39 at para. 27 , 251 Man.R. (2d) 286 , leave to appeal to S.C.C. dismissed, [2010] S.C.C.A. No. 238 (QL). 116 In the case at bar, there was such a linear connection between Helgason and Mr. Cawley. While the documents failed to

indicate that someone was signing by proxy, the court in Foley held that such a failure is not a fatal flaw. Critical is the finding of fact by the trial judge (at para. 75): “In the circumstances, it is possible that Cawley authorized Warren Helgason to make Exhibit 12 and that Warren Helgason reasonably believed he had authority to make it.” 117 The trial judge makes the same finding with respect to Exhibit 13 (the Assignment Form).

Not only was he not convinced beyond a reasonable doubt that it was Helgason who made the document, but he also found that “the assignment in Exhibit 13 is generally consistent with the meaning and intent of the consent signed by Mr. Cawley on or about December 2, 1997 (Exhibit 11)” (at para. 80). Consequently, the trial judge concluded that, with respect to the Assignment Form (Exhibit 13), he was left with a reasonable doubt as to whether Helgason “honestly believed he had authority to do so” (at para. 81).

Based on those findings of fact, I see no error of law in the judge’s dismissal of those charges. 118 Count 24 (forgery) and count 25 (uttering) relate to the Assignment Form (Exhibit 13). In Exhibit 13, the department Assignment Form, Mr. Cawley assigned all of his right, title and interest in the permit/lease for Lot 23 to Helgason. Mr. Cawley did not complete this document, and his signature is not the signature above the words “lotholder signature.” 119 However, the assignment in Exhibit 13 is generally consistent with the meaning and intent of the consent signed by Mr.

Cawley on or about December 2, 1997, and, therefore, the trial judge was left with a reasonable doubt as to whether Helgason honestly believed he had authority to make the document.

For the same reasons, Helgason was acquitted of count 25. 120 With respect to those counts, the Crown submits that the trial judge failed to consider the provision of the Code respecting parties, and that the trial judge’s finding respecting mens rea was inconsistent with a prior finding of dishonesty. 121 The Crown relies on the trial judge’s comment that he was “sympathetic to the Crown’s submission that the procedure followed was not an honest procedure” (at para. 34), and argues that was a finding of dishonesty. 122 The Crown argues: It is clear from these comments that the Learned Trial Judge was satisfied that [Helgason] was responsible for the submission to the department of the series of documents which resulted in a lease being issued to him and that this involved a dishonest procedure.

It is submitted that this finding is inconsistent with an honest belief on [Helgason]’s part that he could make Exhibit 13. As Exhibit 13 was one of the series of documents submitted for the purpose of obtaining a lease, it was unnecessary for the Learned Trial Judge to find that [Helgason] was the actual author of the document, as he would nevertheless be a party pursuant to

section 21 or

section 22 of the Code . 123 First, the trial judge did not make these comments when he discussed count 24 and count 25 on the charges of forgery and uttering. Second, again the comments must be looked at in context. The trial judge did not conclude this was a dishonest process within the criminal context. 124 Again, I would dismiss these appeals.

FRAUD Benson and Helgason – Counts 21 and 26 125 These counts charge Benson and Helgason, respectively, with defrauding the Government of Manitoba of a lease of vacation home Lot 13 (count 21) being issued to Jean Plant and Marlene Greenfield as joint tenants, and of vacation home Lot 23 (count 26). Count 26 charged Helgason with defrauding the Government of Manitoba of a lease following an application submitted in Richard Cawley’s name, and a lease issuing to Helgason. 126 Count 21 of the indictment reads: 21.

That they, the said Marlene Greenfield and Marvin Benson at or near the City of Selkirk in the Province of Manitoba between the 21 st day of December 1999 and the 29 th day of February 2000 did unlawfully by deceit, falsehood or other fraudulent means defraud the Government of Manitoba of a lease of vacation home lot 13 in Hecla/Grindstone Provincial Park of a value exceeding five thousand dollars. 127 Count 26 of the indictment reads: 26.

That they, the said Warren Helgason and Marlene Greenfield at or near the city of Winnipeg in the Province of Manitoba between the 3 rd day of December 1997 and the 10 th day of June 1999 did unlawfully by deceit, falsehood or other fraudulent means defraud the Government of Manitoba of Vacation Home Lot 23 in Hecla/Grindstone Provincial Park of a value exceeding five thousand dollars.

128 The trial judge acquitted Benson of count 21 in his June judgment and wrote as follows (at paras. 34-36): I am sympathetic to the Crown’s submission that the procedure followed was not an honest procedure. However, Marvin Benson was onthe eligibility committee, and he must have been aware of the Government’s position as described by Mr. Prouse.

Without in any way condoning Marvin Benson’s conduct, I am left with a reasonable doubt as to whether the Government was inducedto act to its detriment by Marvin Benson’s conduct, whether his conduct deprived the Government of Manitoba of a lease of vacationhome Lot 13, and whether he knew that his conduct put at risk the economic (financial) interests of the Government.

Having considered all of the evidence in relation to Count 21, I am not satisfied beyond a reasonable doubt that Marvin Benson is guiltyof the offence described in that count. 129 He made almost identical comments with respect to count 26 and Helgason (at paras. 67-69): Once again, I am sympathetic to the Crown’s submission that the procedure followed was not an honest procedure. However, WarrenHelgason was on the eligibility committee, and he must have been aware of the Government’s position as described by Mr. Prouse.

Without in any way condoning Warren Helgason’s conduct, I am left with a reasonable doubt as to whether the Government was inducedto act to its detriment by Warren Helgason’s conduct, whether his conduct deprived the Government of Manitoba of vacation home Lot23 and whether he knew that his conduct put at risk the economic (financial) interests of the Government. Having considered all of the evidence in relation to Count 26, I am not satisfied beyond a reasonable doubt that Warren Helgason isguilty of the offence described in that count.

Position of the Parties 130 The Crown has appealed the acquittals on both of the above counts. With respect to count 21, the Crown submits thatthe trial judge misapprehended both the actus reus and mens rea requirements of the offence of fraud. The Crown argues that it isirrelevant if the document memorialized a prior agreement. It was created to deceive. The leases are dishonest because they were notsigned by the people whose names were on the lease. The accused signed them and that act resulted in the issuance of the lease. According to The Queen v.

Lemire, (SCC), [1965] S.C.R. 174, the Crown submits, there is deprivation because theyobtained the leases because of dishonest conduct. If there is a dishonest method then it is fraud even if the government would havelikely granted the leases in any event. Mr. Prouse could not authorize dishonest conduct. Authorization does not allow Benson to falsifydocuments. 131 In response, Benson argues that the facts of this case, and specifically the evidence of Mr. Prouse, differentiate this casefrom Lemire. There is no dishonest deprivation here because Mr.

Prouse testified that the government did not care if someone elsesigned in the name of the eligible landowner, or if the lot was then assigned, so long as the act was done willingly andwith authorization. 132 The arguments and positions of the parties with respect to count 26 and Helgason are essentially the same. The Crownargues that the exhibits upon which count 26 is based were designed to make the government believe that Mr. Cawley was interested inthe lease of a lot when in fact he had no such interest.

On the other hand, defence counsel submits that when the government issued thelease directly to Helgason, it was exactly what Mr. Cawley and Helgason had agreed to, the government (in the form of Mr.

Prouse)knew what was happening and there was no fraud. 133 A central plank in the Crown’s submission with respect to both counts is that the government suffered a deprivation,even if both Benson and Helgason were aware that the government did not care if someone else signed in the name of an eligiblelandowner. 134 The essential issue then becomes what constitutes deprivation and is that finding a question of law or mixed fact and lawin this particular situation. The Law of Fraud 135

Section 380 of the Code establishes the offence of fraud and reads:

Fraud 380.

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of thisAct, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service, (

a) is guilty of an indictable offence … …. 136 The Crown must prove both the actus reus and the mens rea of the offence. The actus reus of fraud has two elements, adishonest act and deprivation. In order to succeed, the Crown has to establish dishonest deprivation. The dishonest act is established byobjective proof of deceit, falsehood or “other fraudulent means.” What constitutes a lie or a deceitful act for the purpose of the actusreus is judged on the objective facts.

All that need be determined is whether the accused, as a matter of fact, represented that a situationwas of a certain character when, in reality, it was not. The meaning of “other fraudulent means” is also determined objectively, byreference to what a reasonable person would consider to be a dishonest act. See R. v. Théroux, (SCC), [1993] 2 S.C.R.5. 137 The element of deprivation is satisfied on proof of detriment, prejudice or risk of prejudice to the economic interests ofthe victim, caused by the dishonest act.

It is not essential that there be actual economic loss as to the outcome of the fraud, or that theaccused have profited from the fraud. See R. v. Olan et al., (SCC), [1978] 2 S.C.R. 1175 at 1182. 138 The mens rea of fraud is the intentional commission of the prohibited acts (deceit, falsehood, or other dishonest act)knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation).

The mens rea of fraudconsists in the subjective knowledge of the prohibited act, and subjective knowledge that the prohibited act could have as a consequencethe deprivation of another (which deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk). See R. v.Zlatic, (SCC), [1993] 2 S.C.R. 29. 139 The proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed theprohibited acts (deceit, falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offences (deprivation,including the risk of deprivation).

The personal feeling of the accused about the honesty of the act or its consequences is no morerelevant to the analysis than is the accused’s awareness that the particular acts undertaken constitute a criminal offence (see Théroux). 140 Where the conduct and knowledge are established, the accused is guilty whether he actually intended the prohibitedconsequence or was reckless as to whether it would occur. The accused’s belief that the conduct is not wrong or that no one will be hurtin the end affords no defence. There is no requirement of subjective awareness of dishonesty. An accused’s belief that

an act is honestwill not help him if it is objectively dishonest, as determined by reasonable persons (Théroux). This should be distinguished from theaccused’s belief in facts that, if true, would deprive the act of its dishonest character. The test for a guilty mind is an objective one. 141 The trial judge correctly identified the actus reus and mens rea requirements of the offence of fraud. He set out thesections of the Code and engaged in an analysis of the relevant case law on the offence of fraud in his March reasons for decision. 142 In his March decision, he stated (at paras. 25-27): In R. v.

Olan, Hudson and Hartnett, (SCC), [1978] 2 S.C.R. 1175; 21 N.R. 504, and R. v.

Théroux (R.), (SCC), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, the Supreme Court confirmed that the actus reus of the offence of fraudconsists of two elements, a dishonest act and deprivation, and that: 1. the dishonest act is established by objective proof of deceit, falsehood or “other fraudulent means”; 2. “other fraudulent means” is determined objectively, by reference to what a reasonable person would consider to be a dishonest act; and 3. deprivation is established by proof of detriment, prejudice or risk of prejudice to the economic interests of the victim, caused by thedishonest act. In R. v.

Zlatic (Z.), (SCC), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C. 161; [1993] S.C.J. No. 43, the Supreme Courtprovided additional clarification with respect to “other fraudulent means”:

32 The fundamental question in determining the actus reus of fraud within the third head of the offence of fraud is whether the means to the alleged fraud can properly be stigmatized as dishonest: Olan , supra. In determining this, one applies a standard of the reasonable person. Would the reasonable person stigmatize what was done as dishonest ? Dishonesty is, of course, difficult to define with precision. It does, however, connote an underhanded design which has the effect, or which engenders the risk, of depriving others of what is theirs. J.D.

Ewart, in his Criminal Fraud (1986), defines dishonest conduct as that “which ordinary, decent people would feel was discreditable as being clearly at variance with straightforward or honourable dealings” (p. 99). Negligence does not suffice. Nor does taking advantage of an opportunity to someone else’s detriment, where that taking has not been occasioned by unscrupulous conduct, regardless of whether such conduct was wilful or reckless .

The dishonesty of “other fraudulent means” has, at its heart, the wrongful use of something in which another person has an interest, in such a manner that this other’s interest is extinguished or put at risk. A use is “wrongful” in this context if it constitutes conduct which reasonable decent persons would consider dishonest and unscrupulous . (Emphasis added) With respect to the mens rea of the offence of fraud, the Supreme Court has said that it consists of a subjective knowledge of the deceit, falsehood or other fraudulent act, where the deprivation or risk of deprivation could follow as a likely consequence.

In R. v. Zlatic , supra, the court elaborated on the mens rea requirement for fraud by “other fraudulent means” as follows: 40 ... As is pointed out in Théroux , released concurrently, fraud by “other fraudulent means” does not require that the accused subjectively appreciate the dishonesty of his or her acts.

The accused must knowingly, i.e., subjectively, undertake the conduct which constitutes the dishonest act, and must subjectively appreciate that the consequences of such conduct could be deprivation , in the sense of causing another to lose his or her pecuniary interest in certain property or in placing that interest at risk. (Emphasis added) 143 With respect to the trial judge’s application of the law to the facts, the Crown acknowledges that the trial judge’s conclusions were in large measure based on his view of the significance of the testimony of Mr.

Prouse. 144 The trial judge had evidence from the individuals involved or their family members as to their intention to have another individual receive the lease. The trial judge also heard testimony from Mr. Prouse. Mr. Prouse testified that if a document was signed with the consent of another, he would not have been concerned with falsification.

It was the question of voluntariness that most concerned the government. 145 In the course of Prouse’s testimony the following exchange occurred: Q So if you had found out, for instance, that Aunt Mary’s nephew or niece or friend who she was sponsoring had signed Aunt Mary’s name on Aunt Mary’s consent, that wouldn’t void the application, that wouldn’t void the lease. What you might want was just a document saying this is what we’ve done and we’re okay with that? A Yes, that’s correct.

From the family you’re speaking of? 146 The trial judge also had evidence as to a number of facts that were admitted pursuant to s. 655 of the Code which described the formation of the Hecla Advisory Committee and the process taken to obtain a lease. This information, in conjunction with the information from Mr. Prouse, allowed the trial judge to rely on an inference that the accused were aware of the government’s position regarding the assignments of lots.

Relying upon this information, the court was entitled to find reasonable doubt as to whether the government was induced to act to its detriment by the accused’s conduct, and did so find reasonable doubt. As a result of the position taken by Mr.

Prouse, as a representative of the government, and the rest of the evidence, the trial judge concluded that he was left with a reasonable doubt as to whether the government was induced to act to its detriment by the accused’s conduct, whether their conduct deprived the government of a lease/vacation home lot, and whether they knew that their conduct put at risk the economic (financial) interests of the government. 147 The trial judge concluded that it was clear from the evidence that there was a willing transfer of entitlement made in both circumstances.

Further, he found that the accused “must have been aware of the Government’s position as described by Mr. Prouse” (June decision at paras. 34, 67). He was able to arrive at that conclusion because he had evidence that they were part of the eligibility committee. These are findings of fact. 148 Based on those findings of fact, the trial judge concluded that there was reasonable doubt in regards to the offence, in particular whether the government was induced to act to its detriment by the actions of the accused.

I see no reviewable error of law here. 149 As we know, the application of a legal standard, or the application of the law, to the facts of the case is a question of law while deference is owed to the trial judge’s findings of fact and to issues of mixed fact and law. See R. v. Shepherd , 2009 SCC 35 at para. 20 , [2009] 2 S.C.R. 527, and R. v. Grant , 2009 SCC 32 at para. 43 , [2009] 2 S.C.R. 353. It is not always easy to distinguish between questions of law, questions of fact and questions of mixed fact and law.

That distinction is vital since the Crown only has jurisdiction to appeal an acquittal on a question of law. In this case, the Crown’s appeal rests on a disagreement with the judge’s assessment of the particular facts and their consequences, rather than a general principle of law, and is thus a question of mixed fact and

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