SCHRECK J.:

1Kevin Gyasi went to the Shopper's World Mall in Brampton to buy a video game. By the time his shopping trip was over, he found himself under arrest and charged with eight criminal offences:

Counts 1 and 2: fraudulent possession of credit card data, contrary to s. 342(3) of the Criminal Code;
Counts 3 and 4: possession of a credit card knowing it was obtained by the commission of an offence in Canada, contrary to s. 342(1)(c)(i);
Count 5: assault with intent to resist arrest, contrary to s. 270(1)(b);
Counts 6 and 7: failure to comply with an undertaking, contrary to s. 145(3);
Count 8: fraud under $5000, contrary to s. 380(1)(b).

2It is not in issue that Mr. Gyasi was in possession of two Visa "gift cards" that were not genuine. He submits, however, that the Crown has failed to prove that he was aware of this. With respect to the charge of assault with intent to resist arrest, Mr. Gyasi submits that the officer had no grounds to arrest him and, even if he did, that he did not assault the officer. The submission that there were no grounds for arrest is also the basis of an application by Mr. Gyasi pursuant to ss. 9 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude the evidence that he was bound by recognizances and some of the evidence relating to Count 8.

3For the reasons that follow, I am satisfied beyond a reasonable doubt that Mr. Gyasi knew that the gift cards were fraudulent and that he possessed and used them. I therefore find him guilty on Counts 1, 3 and 8. I am not, however, satisfied that the cards were obtained by the commission of an offence in Canada and therefore dismiss Counts 2 and 4. While I am satisfied that the arrest of Mr. Gyasi was valid and dismiss his Charter application, I am not satisfied that he assaulted the arresting officer and accordingly dismiss Count 5. I am satisfied that Mr. Gyasi breached two conditions of a recognizance and therefore find him guilty on Counts 7 and 8.

I. Evidence

A. The Video Game Purchases

(i) EB Games

4EB Games is a store at Shopper's World which sells video games. The manager of the store, Ahkash Sathai, testified that on February 20, 2015 he was working alone when a man came in and asked to purchase an NBA Basketball video game for a Playstation device. Mr. Sathai described the man as black and wearing a "camo" jacket and a white hoodie. He testified that he would not be able to identify this person if he saw him again.

5Mr. Sathai provided the man with the game, which cost $54.23, including tax. The man told him that he would pay for it with a debit card. Card transactions at the store were conducted using a machine in which the card was inserted or swiped. The machine ordinarily produced two paper receipts, one for the customer and one for the store. In the case of a credit card transaction, the customer's copy usually indicated the last four digits of the credit card number, but did not do so for a debit card transaction.

6In this case, the machine indicated that the last four digits were 0957 and that the card being swiped was a Visa. Because the man had said that he was using a debit card, Mr. Sathai found this to be unusual and asked the man if he could see the card. The man gave Mr. Sathai the card, which was a Visa gift card.[1] He compared the last four numbers on the face of the card to the numbers on the printed receipt. They did not match, which Mr. Sathai testified was usually a sign that the card was fraudulent.

7Mr. Sathai told the man that the last four digits on the card did not match. The man told him that he had just obtained the card and that this had never happened before. He then left the store without completing the purchase. Mr. Sathai called the mall security office and reported that a man had tried to use a fake credit card. He provided a description of the man and the direction he had been heading when he left.

(ii) We Got Games

8Jessica Lima, an employee at We Got Games, another video game store, testified that at around 12:40 p.m. a man entered the store and asked to purchase an NBA Basketball video game for a Playstation. She described the man as black, about six feet tall and wearing a "hoodie" and jeans. He was later identified as the defendant, Kevin Gyasi.

9Ms. Lima asked the man if he wanted a new or used version and he indicated that he would prefer a used one. Ms. Lima had a used copy, which cost $54.99. The man produced a card which he swiped through the card machine. The machine indicated that the transaction was approved and produced two receipts. Ms. Lima asked the man to sign one copy and provided him with the other. She did not look at the card. A We Got Games receipt later seized from Mr. Gyasi showed that the last four numbers on the card that was used were 0578.

10According to Ms. Lima, as the man was trying to leave the store, a security guard and a police officer entered the store and asked the man to come with them. The man told them that the card was his and then tried to run away. In doing so, he "brushed" or "pushed" past the officer and the security guard, who attempted to stop him.

B. The Arrest

11Christopher Roca-Martinez, a security guard at Shopper's World, received the call from Mr. Sathai at 12:38 p.m. in which he was told that a man had tried to use a fraudulent card. Mr. Roca-Martinez relayed what he had been told to another security guard, Christopher Raposo, and a police officer, Cst. Darcy Petersen, who happened to be there in relation to an earlier unrelated incident. They saw a person fitting the description provided by Mr. Sathai on the mall surveillance video in (according to Cst. Petersen) or near (according to Mr. Raposo) EB Games. He then walked from there to We Got Games. Mr. Raposo and Cst. Petersen left the security office and headed towards We Got Games.

12Cst. Petersen testified that when he and Mr. Raposo entered the store, he told Mr. Gyasi that he had received a report of him using a fraudulent credit card and that he was under arrest for fraud. He asked him to turn around and put his hands behind his back. Mr. Gyasi initially said that he did not understand what Cst. Petersen was talking about, and then tried to flee. As he did so, he pushed past Cst. Petersen and his left shoulder came into contact with the officer's left shoulder.

13Cst. Petersen and Mr. Raposo tried to prevent Mr. Gyasi from fleeing and a struggle ensued. Mr. Gyasi was taken to the ground three times but managed to get up each time. He did not punch or kick anybody, but did attempt to get away. Eventually, Mr. Gyasi was subdued and handcuffed.

C. The Gift Cards

14When Mr. Gyasi was searched incident to arrest, a number of receipts were found on his person from Walmart and We Got Games as well as two Visa gift cards. On each card, in the location where the account holder's name would usually appear were the words "gift recipient". Cst. Petersen examined both cards using a card reader at the police station. One card bore the number 4284340138440762 but the number on the magnetic strip, as revealed by the card reader, was 4246315190190957. The second card bore the number 4284340143037041, but the magnetic strip revealed the number 4190022460350578.

15Bank records from the U.S. Bank were admitted pursuant to s. 29 of the Canada Evidence Act.[2] They show that a customer of the U.S. Bank who was not Mr. Gyasi had a debit card with the account number 4190022460350578 which had been reported as stolen.

D. The Walmart Receipts

16Four Walmart receipts were tendered. All were for transactions that occurred between 12:02 and 12:16 p.m. on February 20, 2015 and were from a Walmart store on Resolution Drive in Brampton. In two transactions, a gift card worth $50.00 was purchased using two different Visa cards with the last four numbers being 0957 and 0578, which correspond with the cards seized from Mr. Gyasi. In another, an Ipad Mini worth $314.99 was purchased. $50.00 of the purchase price was paid for using a Visa with the last four numbers 0578. The balance was paid for using other types of gift cards. The fourth transaction does not appear to have involved a Visa card.

17Cst. Petersen testified that he viewed some video surveillance which another unidentified officer told him had been obtained from Walmart. Cst. Petersen was unaware of the date on which the video was taken. He testified that on the video he saw Mr. Gyasi making purchases at two different cash stations inside Walmart. The video was not tendered as evidence.

E. The Recognizance

18At the time of the events in question, Mr. Gyasi was bound by a recognizance that included a condition that he remain in his residence unless in the company of a surety and a condition that he not possess, inter alia, credit or debit cards not issued in his name.

II. Analysis

A. Counts 1 to 4

(i) Counts 1 and 2

19The Crown accepts that Counts 1 and 3 relate to the same transaction and that if a finding of guilt is made for both, one should be conditionally stayed pursuant to the rule against multiple convictions. The same reasoning applies to Counts 2 and 4.

20With respect to Counts 1 and 2, fraudulent possession of credit card data, the Crown must prove that Mr. Gyasi was the person involved, that he possessed credit card data and that he did so fraudulently. With respect to identity, counsel for Mr. Gyasi submits that the Crown has not proven that Mr. Gyasi was the person who attempted to make a purchase at EB Games. I have no doubt that he was. While there were some discrepancies between the descriptions given by the various witnesses, the security guards testified that they saw the person in question walk from EB Games to We Got Games. There is no issue that Mr. Gyasi was the person arrested at We Got Games. As well, the person at EB Games attempted to purchase the same game that Mr. Gyasi purchased at We Got Games.

21The Crown must also prove that Mr. Gyasi possessed the credit card data "fraudulently". In my view, the fact that the numbers on the magnetic strips did not correspond to the numbers on the faces of the cards establishes that the cards were not genuine and were created to be used fraudulently.

22The more difficult issue is whether the Crown has proven that Mr. Gyasi was aware that the cards were not genuine. Several witnesses agreed in cross-examination that gift cards are common. While the number on the magnetic strips did not match the numbers on the faces of the cards, this was apparent only when a card reader was used and there is no evidence that Mr. Gyasi possessed such a device.

23I am, however, satisfied beyond a reasonable doubt that Mr. Gyasi knew that the cards were fraudulent. He had two virtually identical cards on his person, both of which were fraudulent. It is reasonable to infer that he obtained them from the same source. Counsel submits that it is possible that somebody gave the cards to Mr. Gyasi without him knowing that they were not genuine. However, when he was advised that one of the cards was potentially fraudulent, he must have known that it was likely that the second card was fraudulent as well. He nevertheless proceeded to use it. I conclude from this that he was aware that neither card was genuine.

24In coming to this conclusion, although I was invited to do so by the Crown, I have not considered the fact that Mr. Gyasi was on a recognizance prohibiting from possessing credit cards not in his name. Crown counsel submitted that I can infer from the fact that Mr. Gyasi was on a recognizance that he was "overly savvy with this data" and could tell the difference between a card that is fraudulent and one that is genuine. In my view, this comes dangerously close to propensity reasoning. There is little difference between suggesting that because Mr. Gyasi was charged with similar offences in the past, he is less likely to have innocently possessed fraudulent cards and suggesting that because of his antecedents, he is more likely to be guilty. In my view, the prejudicial effect of this evidence outweighs its probative value.

(ii) Counts 3 and 4

25With respect to Counts 3 and 4, Mr. Gyasi has been charged under s. 342(1)(c)(i) of the Criminal Code, which requires the Crown to prove that the credit cards were obtained by the commission in Canada of an offence. He could have been charged under s. 342(1)(c)(ii), in which case the Crown would have had to prove that the card was obtained "by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence". I have heard no admissible evidence as to how the card used at EB Games was obtained. The other card relates to an account number that belongs to an individual in the United States. In these circumstances, I am not satisfied beyond a reasonable doubt that the cards were obtained by the commission of an offence in Canada.

B. Count 5 – Assault With Intent to Resist Arrest

(i) The Lawfulness of the Arrest

26To obtain a conviction on this count, the Crown must prove that Mr. Gyasi assaulted Cst. Petersen and that he did so to prevent the lawful arrest of himself. Counsel for Mr. Gyasi takes the position that neither element has been proven.

27With respect to the lawfulness of the arrest, it is submitted that Cst. Petersen did not have reasonable and probable grounds to arrest Mr. Gyasi based on the information he had at the time. The basis for the arrest was that Cst. Petersen had been advised by the security guards that they had been told by somebody employed at EB Games that Mr. Gyasi had used a fraudulent credit card.

28A police officer determining whether he has reasonable grounds for an arrest does not have to consider the information available to him in the same manner as would a justice considering whether to issue a search warrant: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.) at para. 18. However, an officer is required to conduct whatever inquiry "which the circumstances reasonably permit": Golub at para. 21. In this case, Cst. Petersen had no reason to disregard as unreliable the information he had obtained from the EB Games employee. The information from the employee was direct, concurrent and continuous and not from an anonymous source: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.J.) at para. 58.

29The facts in this case are markedly different from those in R. v. Johnson (2007), 55 C.R. (6th) 118 (Ont. S.C.J.), on which counsel for Mr. Gyasi relies. In that case, the accused was arrested for assault. However, based on the information the police had at the time, it was not clear that an assault had occurred. Even more importantly, the description the police had been given of the suspect was very general: Johnson at paras. 16-19. In my view, there were reasonable grounds to arrest Mr. Gyasi in the circumstances of this case.

(ii) The Existence of an Assault

30Mr. Gyasi is charged with assault with intent to resist arrest, contrary to s. 270(1)(b) of the Criminal Code. He was not charged with resisting a peace officer in the execution of his duty, contrary to s. 129(a). There is no evidence that Mr. Gyasi struck or kicked anybody. Crown counsel correctly acknowledges that Mr. Gyasi did not commit an assault by struggling to get away from Cst. Petersen: R. v. Hickey, [2004] O.J. No. 199 (C.A.) at para. 2; R. v. N.C., [2004] O.J. No. 5335 (C.J.) at paras. 24-28. However, she submits that Mr. Gyasi committed an assault by causing his shoulder to come into contact with Cst. Petersen's shoulder while brushing past him.

31I am far from satisfied that the contact with Cst. Petersen's shoulder was intentional. The only evidence I heard as to the circumstances in which the contact occurred was that it was while Mr. Gyasi was "brushing past" the officer. I do not know if the officer moved while Mr. Gyasi tried to get past him. It is entirely possible that the contact was accidental. While Mr. Gyasi clearly resisted arrest, I am not satisfied that he committed an assault in doing so.

C. Counts 6 and 7 – Failing to Comply With a Recognizance

(i) The Charter Application

32At the beginning of the trial, counsel for Mr. Gyasi advised the Court that no Charter application was being brought. After the evidence was heard and final submissions were made, counsel for Mr. Gyasi invited the Court to consider, pursuant to R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), whether the arrest of Mr. Gyasi resulted in a violation of his s. 9 Charter rights such that the evidence that he was on a recognizance ought to be excluded. I advised counsel that I was not prepared to raise a Charter issue on my own motion, but if counsel wished to raise the issue, he could make written submissions in that regard and the Crown would be given an opportunity to respond. Counsel for Mr. Gyasi accordingly made written submissions, which essentially repeated the argument he had already advanced in relation to Count 5.

33In written submissions filed in response, Crown counsel referred to the Charter application being brought after the evidence and submissions were complete as "an affront to trial fairness". This is not, in my view, a fair characterization. The Crown was clearly advised that it would be given a full opportunity to respond to the application. The application related solely to the legality of the arrest, an issue that had already been fully litigated. While the application should have been brought at the outset, counsel's failure to do so occasioned no prejudice to the Crown.

34However, although I am permitting Mr. Gyasi to bring the application, for the reasons outlined earlier I am of the view that Cst. Petersen had reasonable grounds for the arrest. I am therefore not persuaded that there was a violation of s. 9 and the Charter application is dismissed.

(ii) Count 6 – Not in the Company of His Surety

35There is no issue that Mr. Gyasi was bound by a recognizance which included a condition that he was not to be outside his residence unless in the company of his surety. There is no issue that Mr. Gyasi was outside his residence at the relevant time. However, his counsel submits that the Crown has failed to prove that he was not in the company of his surety. He submits that it is entirely possible that the surety was nearby.

36In R. v. J.G., 2012 ONSC 1090 , [2012] O.J. No. 657 (S.C.J.), Code J. discussed cases such as this where an individual is charged with breaching a condition of a probation order or recognizance where the condition is subject to certain exceptions (at para. 17):

Terms of probation orders and bail orders often contain what are plainly "exemptions" or "exceptions", within the literal meaning of these terms used in s. 794(2). Furthermore, prosecutions for breaches of bail and probation orders generally proceed summarily under Part 27 of the Criminal Code. However, these are true criminal offences and not regulatory offences. Furthermore, the "exemptions" or "exceptions" do not create "a status in law" that can readily be proved by the accused simply producing a license. Without expressing a definitive position on the issue, I am inclined to the view that where the facts elicited in evidence at trial give an "air of reality" to some "exception" or "exemption", then the issue is properly raised and the Crown must negative that "exception" or "exemption" by proof beyond reasonable doubt. In other words, where the "exemption" or "exception" has become a viable defence on the facts of a particular case, the Crown must negative that defence, just like duress, necessity, self-defence, provocation, mistake of fact and most other defences.

37While I generally agree with this approach, caution must be exercised in applying it to ensure that the burden of proof remains on the Crown. For example, in R. v. Roberts, [2015] O.J. No. 2523 (C.J.), the Court held that proof that an accused breached a condition requiring him to be at home unless at work or school was not made out merely by establishing that the accused was not at home. The Crown had to establish that he was not at work or school and there was no onus on the accused to establish an "air of reality" in this regard.

38In this case, if there had been any evidence that Mr. Gyasi was in the company of another person, then the Crown would have had to prove that that person was not his surety. However, there was no such evidence. None of the witnesses who interacted with Mr. Gyasi described him as being in the company of anybody else. In my view, the suggestion that his surety was lurking somewhere nearby is entirely speculative and not something the Crown is required to disprove. I am satisfied that the Crown has proven this charge.

(iii) Count 7 – Possession of Credit Card Not in His Name

39The relevant condition on Mr. Gyasi's recognizance reads as follows:

Do not possess any identification, card with a data strip or security chip, credit or debit card, credit or debit card data, a blank card with a magnetic strip, cheque, negotiable instrument or banking document unless you can prove that it has been lawfully issued in your name.

I have some difficulty with the wording of this condition. As pointed out in R. v. J.G., breach of a recognizance is a true criminal offence which the Crown must prove beyond a reasonable doubt. In my view, it is inappropriate to in effect turn it into a reverse onus offence by wording the condition such that the accused is required to prove that he is not breaching his condition. To do so potentially violates s. 11(d) of the Charter.

40In this case, however, there is no issue that Mr. Gyasi possessed gift cards with magnetic data strips and that these cards were not in anybody's name. It follows that it has been proven that they were not in Mr. Gyasi's name.

D. Count 8 – Fraud at Walmart

41Receipts found on Mr. Gyasi's person at the time of his arrest show that on February 20, 2015, Visa cards with the last four digits 0578 and 0957 were used to buy $100.00 worth of gift cards and part of the cost of an Ipad. Based on Mr. Gyasi's possession of the receipts and the gift cards, I infer that he is the person who made the purchases.

42In coming to this conclusion, I have not relied on Cst. Petersen's evidence about viewing the video. There is no admissible evidence that the video came from Walmart. Cst. Petersen was told this by another, unidentified officer who did not testify. As well, I have heard no evidence that Cst. Petersen knew Mr. Gyasi before arresting him. He was in no better position than anybody else to identify Mr. Gyasi on the video and his opinion as to identification was therefore inadmissible: R. v. Leaney, [1989] 2 S.C.R. 393 at para. 33. No explanation was offered as to why the video was not tendered as evidence.

43The Information particularizes Walmart as the victim of the fraud. Although it is unclear on the evidence whether it was Walmart or Visa which suffered losses, the particularization of Walmart as the victim is, in my view, surplusage that need not be proven: R. v. Vezina, [1986] 1 S.C.R. 2 at para. 49; R. v. Little, [2015] O.J. No. 521 (C.J.) at paras. 25-26.

III. Disposition

44For the foregoing reasons, Mr. Gyasi is found guilty on Counts 1, 2, 6, 7 and 8. Counts 3, 4 and 5 are dismissed.

Justice P.A. Schreck

Released: January 29, 2016

Footnotes

1Unlike a regular credit card, where purchases are made and paid for afterwards, a gift card is paid for in advance. Unlike credit cards, they do not bear anybody's name. Once the funds on the card are used up, they cannot be re-loaded.

2The Crown also tendered records from the Chase Bank. Unlike the U.S. Bank records, which were accompanied by an affidavit, the Chase records were accompanied by an unsworn letter from a bank employee. The employee is identified only as "LENS Representative" and no name is provided. The Crown abandoned its application to have these records admitted.