Court of Appeal for Ontario

DATE: 20210512 DOCKET: C67990

Hoy, Hourigan and Zarnett J.J.A.

BETWEEN

Her Majesty the Queen Respondent

and

Christopher Smith Appellant

Christopher Smith, acting in person Daniel A. Stein, acting as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: May 4, 2021 by videoconference

On appeal from the conviction entered on December 4, 2019 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury, and the sentence imposed on January 14, 2020.

Reasons for Decision

[1] As a result of a search by the police of a residence on Cannon Street in Hamilton, the appellant was charged with a number of offences: two counts of possessing, without lawful authority, identity documents that related to another person contrary to s. 56.1(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46; two counts of possessing, without lawful authority, a counterfeit mark contrary to s. 376(2)(b) of the Code; and one count of possessing cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The same items formed the basis of the identity document charges and the counterfeit mark charges – a driver’s licence and Ontario health cards. They each bore the Ontario government trillium logo — the fact at the core of the allegation of a counterfeit mark. They each had a photograph of the appellant, but a different name and various dates of birth — the facts at the core of the allegation that they were identity documents that related to another person. They were each found in a box on the main floor of the Cannon Street premises.

[3] The cocaine — approximately 4.5 grams — was found beneath clothing on the second floor of the Cannon Street premises.

[4] The appellant was tried by a judge and jury. The central issue at trial was whether the identity cards and cocaine were in the possession of the appellant and whether he had knowledge of them. This issue largely turned on the appellant’s connections to the Cannon Street premises.

[5] The trial judge’s charge to the jury explained that there were limited matters for them to consider. He instructed the jury to find that the driver’s licence and health cards were identity documents that related to another person (as s. 56.1 requires), that the marks (the trillium logo) on them were counterfeit (as s. 376(2)(b) requires), and that there was no lawful authority for their possession (as both sections require). He also instructed the jury that there was no issue that the drug was cocaine.

[6] After describing the essential elements of each count of each offence, the trial judge said:

Therefore, to help you in your analysis, the issues in this case for all of the charges related to Mr. Smith's alleged possession of the false identity cards in question, and/or the cocaine found in the residence. Therefore, the only questions or essential elements for all of the counts relates to your consideration of Mr. Smith's possession and his knowledge over the identity cards and/or the cocaine.

[7] The trial judge then outlined for the jury the evidence from which an inference might or might not be drawn of possession and knowledge, instructing them that they needed to be satisfied that the essential elements were proven beyond a reasonable doubt for each count.

[8] The jury convicted the appellant on all counts.

[9] Given the conviction on the counterfeit mark charges, the trial judge entered a conditional stay of the convictions on the identity documents charges. He imposed a global sentence of four months incarceration after credit for pre-trial custody, allocating four months to the counterfeit mark charges and 90 days concurrent to the cocaine charge, to be followed by two years probation. He also made certain ancillary orders.

[10] Duty counsel advanced six grounds of appeal on behalf of the appellant, which are discussed below. The other grounds in the Notice of Appeal were not pursued.

[11] The first four grounds raised by duty counsel revolve around the interrelated contentions that the trial judge allowed inadmissible evidence to be led of suspected drug dealing at the Cannon Street premises and of the appellant’s involvement in it, that he failed to instruct the jury about the use of evidence across counts, and that he failed to instruct the jury not to engage in propensity reasoning. We decline to give effect to these arguments.

[12] The appellant was represented by counsel at trial. No objection was made to the evidence now characterized as inadmissible.

[13] The trial judge did not ignore his gatekeeping role. Rather, he exercised it in light of the theories and positions taken by the parties. The trial judge, on his own, limited the narrative evidence of a police officer about the suspected drug dealing that was the backdrop to the search of the premises, noting that the validity of the warrant was not challenged. It was also the trial judge who voiced a concern, and invited a defence objection that he gave effect to, when an officer offered opinion evidence about whether trafficking was taking place at the premises. Although the appellant now argues that a caution to the jury should have been given, the trial judge’s intervention would have made the lack of relevance of those lines of questioning clear to the jury. Moreover, no caution or limiting instruction to the jury was requested during trial. The evidence about drug dealing was not referenced in the judge’s charge, and a limiting instruction about it would have required a repetition of the evidence which may have been contrary to the appellant’s interests: R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61 at para. 108.

[14] Similarly, no request for a cross-count or propensity reasoning instruction was made, despite the evidence led by the Crown and counsel’s participation in a pre-charge conference. Nor was there any objection to the jury charge after its delivery.

[15] While a cross-count or propensity instruction would have been appropriate, we do not view the failure to provide one in this case as a reversible error. In R. v. Beausoleil, 2011 ONCA 471, 277 C.C.C. (3d) 50, this court set out relevant considerations in determining whether such limiting instructions are required. These include the nature of the evidence, the issue to which the evidence is relevant, and the likelihood that an instruction would confuse the jury or draw attention to the discreditable conduct: at para. 20. The key question is whether the appellant was prejudiced by the absence of the instruction.

[16] In our view, given the way the case was framed, the circumstances did not demand a cross-count instruction, nor was the appellant prejudiced by the absence of one. Importantly, the central evidence related to each count was the evidence that connected the appellant to the Cannon Street premises. This evidence was relevant to each count and was approached as such by both sides at trial. Although the jury was not told that guilt on one charge did not mean guilt on any other, the jury was told it needed to be satisfied on each count before convicting on that count.

[17] A propensity reasoning instruction is given to address the risk that evidence of discreditable conduct (not forming the basis of the charge before the court) will be used by the jury to stigmatize the accused as a person of bad character and convict him on that basis, or in a manner that distracts them from the proper issues they are to consider. As noted, there was evidence that police suspicion of the appellant was the reason for surveillance of the Cannon Street premises, but that evidence was limited in scope including by rulings of the trial judge. The bulk of the evidence of the police officers dealt with what they observed during surveillance, what was found when the premises were searched, and the circumstances of the appellant’s arrest (away from the premises). These were relevant to the issues on the charges and were relied on by both sides. In this relatively brief trial with relatively focussed issues, the risks of moral or reasoning prejudice were not high.

[18] The conclusion that the absence of a cross-count or propensity reasoning instruction did not prejudice the appellant is reinforced by the lack of request for such instructions and the lack of an objection to the charge at trial. Where the defence was alerted to, and had a meaningful opportunity to raise such matters, but strategically chose not to, a complaint on appeal about missing instructions may be unavailing: R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394 at para. 32.

[19] Duty counsel’s other two grounds of appeal are that the convictions on the counterfeit mark charges were unreasonable, as the marks were not proven to be counterfeit, as opposed to being genuine but appearing on otherwise false documents.

[20] We are satisfied that this argument was sufficiently referenced in the pre-charge conference to permit its consideration on appeal.

[21] Section 376(2)(b) of the Code provides:

Every one who, without lawful authority,

(b) sells, or exposes for sale, or has in his possession a counterfeit mark, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[22] The Code defines “mark” to include the mark of a province of Canada. It is not disputed that the trillium logo on the driver’s licence and health cards fits that description. The Code does not define “counterfeit”.

[23] In R. v. Sommani, 2007 BCCA 199, 218 C.C.C. (3d) 168, the court held that counterfeit marks are those that “falsely purported to be genuine official marks”: at para. 66. This statement was made in the context of a case where the accused had made false ID cards and argued (unsuccessfully) that the marks he had put on them did not look enough like the genuine government marks to be considered counterfeit versions. In R. v. Ariri, 2007 ONCJ 535, 75 W.C.B. (2d) 468, the accused possessed driver’s licences in other persons’ names that had been “illegally altered”. They were genuine cards but “with illicit photo and information substitutions”. It was held that “once the original photo was removed and a new one with new information substituted, the ‘mark’ or ‘design’ became a counterfeit”: at paras. 14, 48.

[24] The appellant’s argument is that there was no evidence in this case as to how the licence or health cards came to be issued or appear as they did – that is, with the trillium logo, the appellant’s photograph, but a different name and birthdate(s). There was no evidence they were not issued by the government in that form. Put differently, there was no evidence that the government did not issue those cards at all (as in Sommani), or that they were issued by the government and then altered after issuance (as in Ariri).

[25] Trial counsel raised this concern during the pre-charge conference. The trial judge noted that, “I don’t think that’s a necessity the Crown has to prove, quite frankly. The document speaks for itself…I don’t think you’re going to make a lot of headway in that regard”. Ultimately, despite the lack of evidence, the trial judge concluded that, “the cards had a counterfeit mark, I’m going to direct on that they find that.” He then instructed the jury that there was no issue that the identity cards bore a counterfeit mark.

[26] It is unnecessary for us to decide the precise scope of the counterfeit mark offence in s. 376(2) of the Code to resolve this appeal. Even on the scope contended by the Crown before us, the trial judge erred in giving the direction that he did. The result is that the convictions on the counterfeit mark counts cannot stand.

[27] The Crown concedes that for a mark on a government issued document to be counterfeit, the document on which it appears must at least have been altered in some way after the government issued the document and applied the mark. While there was no direct evidence of alteration, Crown counsel argues that the jury could compare the impugned driver’s licence and health cards to others legitimately issued to the appellant (which were also in evidence), and draw the conclusion that the impugned identity cards had been altered post-issuance.

[28] Although there was evidence on which the jury could have made such a comparison, the trial judge took that issue away from the jury with his instruction to treat the marks as counterfeit.

[29] Accordingly, the convictions on the counterfeit mark charges must be set aside. It follows that we must also set aside the conditional stay of the convictions on the identity documents charges. It was not argued, nor do we see any basis, why the net global sentence would be varied as a result of this change, other than to allocate the net term of four months incarceration to the identity documents charges.

[30] Accordingly, the conviction appeal is allowed to the extent of setting aside the convictions on Counts 3 and 4 (the counterfeit mark charges). The conditional stay of the convictions on Counts 1 and 2 (the identity documents charges) is lifted. Leave to appeal sentence is granted, but the sentence appeal is dismissed, other than to vary it to provide that the sentence allocated to Counts 3 and 4 be allocated to Counts 1 and 2.

"Alexandra Hoy J.A."

"C.W. Hourigan J.A."

"B. Zarnett J.A."