DATE: 20021101

DOCKET: C37277

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) and JAMES WILLIAM HALDANE (Appellant)

BEFORE: LABROSSE, SIMMONS, and ARMSTRONG JJ.A.

COUNSEL: James W. Haldane (in person) Michael W. Lacy For the appellant

Scott C. Hutchison For the respondent

HEARD: June 25, 2002

On appeal from convictions entered by Justice Robert D. Reilly of the Superior Court of Justice sitting with a jury on June 21, 2001

E N D O R S E M E N T

[1] The appellant testified that he used a computer, a scanner, a colour printer, and a genuine $20 bill to produce the “copies” of $20 bills that he acknowledged possessing and that formed the subject matter of the counterfeiting and possession of counterfeit charges against him. He explained that he made the copies for a girlfriend’s child and that they were distinguishable from real money because he used water-soluble ink and plain paper to produce them. The appellant also said that, after some of the copies went missing, he enlarged them from their actual size (six per cent on the front and eight per cent on the back) to dissuade unsavoury acquaintances from taking them.

[1] We agree that it would have been preferable for the trial judge to have instructed the jury that the Crown was obliged to prove two distinct additional elements: first, that the bills produced by the appellant resemble current Canadian paper money, and second, that the appellant knew they resembled current Canadian paper money. However, the trial judge instructed the jury that, in determining whether the bills resemble current paper money, they could take account of the appellant’s evidence that he did not intend the bills to resemble current Canadian currency and that he specifically changed their size so that they would not. In our view, given all of the circumstances, there is no air of reality to the submission that, having found the bills produced by the appellant were counterfeit, the jury could have entertained a reasonable doubt that the appellant knew they were counterfeit.

[2] We also agree that it would have been preferable had the trial judge not instructed the jury that they did “not have to worry about [the appellant’s] credibility” and that “there is no question that [the appellant] is a dishonest person”. However, the focus of the defence position at trial was that the offences were not made out because the appellant had no intention of passing the bills as current Canadian paper money. The trial judge instructed the jury that the issue of the appellant’s intention in that respect is irrelevant. He also told the jury that the Crown’s evidence directed at proving the appellant produced and possessed the bills was rendered irrelevant by the appellant’s candour in admitting that he made and possessed the bills and that in that sense the Crown relied on the appellant as a credible witness. It was in this overall context that the trial judge made the impugned comments and also explained to the jury that the appellant’s lengthy criminal record was of minimal relevance. The trial judge went on to instruct the jury as follows:

I am simply telling you now, at the risk of putting it too bluntly, to ignore his criminal record because it cannot assist you in the determination of the one issue that you have to determine in this case and that is whether or not these bills qualify as counterfeit money, with this exception. [The appellant] says he does not think they do or he did not intend … that they resemble Canadian currency. To that extent you can consider his credibility as a witness together with the whole of the other evidence.

[3] Having read the trial judge’s instructions to the jury as a whole and having reviewed the appellant’s evidence at trial, we are satisfied that the trial judge did not remove the issue of credibility from the jury and that no prejudice was occasioned as a result of the impugned instructions.

[4] The appeal is accordingly dismissed.

“J.M. Labrosse J.A.”

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”