Court File and Parties

Court File No.: St. Catharines - 2111-998-14-F0623-00

Date: 2015-02-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Dan Vladescu

Before: Justice A.J. Watson

Heard on: September 29, October 27 and December 29, 2014

Judgment Date: February 23, 2015

Counsel:

A. Brown — counsel for the Crown

J. Christie — counsel for the defendant, Dan Vladescu

Reasons for Judgment

WATSON J.:

Facts

[1] Dan Vladescu is charged in a three-count information with possession of identity documents that relate or purport to relate to "Tim Banner" contrary to section 56.1(4) of the Criminal Code. The documents particularized are an Ontario driver's licence, a Social Insurance Number card and a Certificate of Citizenship. All three documents are included within the definition of "identity document" as set out in section 56.1(2) of the Criminal Code.

[2] Although witnesses were called by the Crown, the Crown's case was essentially admitted. The outcome of this trial concerns a narrow legal issue, that is whether the Crown is required to prove as an essential element of the offences alleged that the person to whom the identity document relates, in this case "Tim Banner", is a "real" person.

[3] U.S. Customs Inspector Jonathan Perry conducted an inspection of a vehicle that had been driven by the defendant to the Buffalo side of the Peace Bridge on February 18, 2014. Inspector Perry identified the defendant's date of birth as 11/25/1979 through the defendant's passport, a photocopy of which was marked exhibit 4. There is no issue at this trial that the passport produced by the defendant both to U.S. Customs and later to Canada Border Services Officers was a valid passport in the name of Dan Michael Vladescu. During the inspection Inspector Perry testified that he located a wallet in the centre console of the defendant's vehicle with multiple identifications which did not match the defendant but contained his photograph. The documents located by Inspector Perry were an Ontario driver's licence containing the defendant's photograph in the name of Tim Banner with a date of birth of 11/25/1969 marked exhibit 3; a Canadian Social Insurance Number card in the name of Tim Banner marked exhibit 2; and a Canadian Citizenship card containing a photograph of the defendant with a date of birth of 11/25/1969 marked exhibit 1. Inspector Perry gave the wallet and its contents to U.S. Customs Inspector Lisa Selvaggio.

[4] Inspector Selvaggio confirmed that she had requested that Inspector Perry inspect the defendant's vehicle. She reviewed the documents obtained by Inspector Perry and noted that the photographs were different from the photograph in the defendant's passport although it appeared to be the same person in all photographs including the passport photograph. She asked the defendant if he knew "Tim Banner" and he responded, "No". The defendant advised her that all of the documents had been "a gag gift from a friend" however he did not identify the friend who gave them to him. Inspector Selvaggio testified that the defendant was travelling with a female and they were both denied entry into the United States however they were allowed to drive their own vehicle back to Canada. Inspector Selvaggio contacted the Canada Border Services Agency and at their request delivered the identity documents to them. Inspector Selvaggio testified that the defendant's passport was returned to him.

[5] Canada Border Services Officer Robert Phillips testified that he was working in the secondary inspection area when the defendant was escorted to the area by U.S. Customs. Officer Phillips conducted a primary inspection of the defendant in the secondary inspection area. Officer Phillips was advised that the defendant and his passenger Danya Borenstein had been refused entry to the United States. Officer Phillips testified that he asked the defendant the primary inspection questions and filled out an E-67 card which was introduced and marked as exhibit 5. Officer Phillips testified that both the defendant and his passenger had provided proof of Canadian citizenship with valid passports and that he had no immigration concerns.

[6] Canada Border Services Officer Jeff McIntyre testified that while in the secondary inspection area of Canada Customs, he was provided with a refusal paper and the documentation marked exhibits 1, 2 and 3 located by U.S. Customs Inspector Perry on the American side. He was also provided with a Bank of Montreal card signed in the name of "Tim Banner". He spoke with the defendant who stated that he was Dan Vladescu and that he had the documents "as a joke". The defendant was also asked if the Bank of Montreal card was his however the defendant did not tell him who the card belonged to. The defendant had other contents in his wallet which were all in his own name.

[7] The defendant was ultimately arrested for being in possession of fraudulent documents. At no time did Officer McIntyre locate a valid driver's licence for the defendant however he testified that the female drove the vehicle into the secondary inspection area. Inspector McIntyre did make inquiries through their "RCMP system" regarding a "Tim Banner" but there was no "Tim Banner" in their system.

[8] Superintendent Michael Libby testified that he was briefed by Officer McIntyre and was present at the arrest of the defendant noting that the female was released unconditionally. Superintendent Libby testified that both were residents of the Greater Toronto Area.

[9] Niagara Regional Police Constable Arthur Eastland attended to continue the arrest of the defendant and received the documents. The matter was thereupon transferred to the fraud department.

[10] Canada Border Services Officer Dena Marzetti testified that she is a Criminal Intelligence Analyst and examined the documentation in the case. Her reports were filed as exhibits 6, 7 and 8. Officer Marzetti testified that the federal documents, that is the Citizenship card and Social Insurance Number card, were examined by her and found to be counterfeit. In cross-examination Officer Marzetti testified that she did not identify a "Tim Banner" during the course of her investigation.

[11] Exhibits 9 and 10, a notice of intent to produce a certified copy and a certified copy of an inquiry conducted by the Ministry of Transportation for the Province of Ontario respectively were filed on consent. The Ministry of Transportation inquiry failed to locate a record of an issuance of a driver's licence under the name of "Tim Banner".

[12] The Crown called Danya Borenstein who was in the motor vehicle with the defendant. Ms. Borenstein testified that she is 24 years of age and has resided in Thornhill all her life. She has known the defendant for a few years through the sport of dodge ball and they are friends. Ms. Borenstein testified that the defendant was living in Aurora at the time. Ms. Borenstein testified that the defendant had asked her if she wanted to go out for lunch, noting that their plan was to go to the Cheesecake Factory in Buffalo. They drove straight to the bridge however they were stopped at the border. They both spoke with U.S. Border officials and were escorted back to Canada. Ms. Borenstein testified that she does not know a "Tim Banner" and the defendant at no time spoke to her about any documents in that name. Ms. Borenstein's belief is that the car they were in belonged to the defendant.

[13] The defence did not call any evidence.

The Issue

[14] Must the Crown prove as an essential element of its case that "Tim Banner" is a "real person"?

Statutory Framework

[15] Section 56.1 reads as follows:

OFFICIAL DOCUMENTS

56.1 Identity documents

56.1 (1) Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.

For greater certainty

(2) For greater certainty, subsection (1) does not prohibit an act that is carried out

(a) in good faith, in the ordinary course of the person's business or employment or in the exercise of the duties of their office;

(b) for genealogical purposes;

(c) with the consent of the person to whom the identity document relates or of a person authorized to consent on behalf of the person to whom the document relates, or of the entity that issued the identity document; or

(d) for a legitimate purpose related to the administration of justice.

Definition of "identity document"

(3) For the purposes of this section, "identity document" means a Social Insurance Number card, a driver's licence, a health insurance card, a birth certificate, a death certificate, a passport as defined in subsection 57(5), a document that simplifies the process of entry into Canada, a certificate of citizenship, a document indicating immigration status in Canada, a certificate of Indian status or an employee identity card that bears the employee's photograph and signature, or any similar document, issued or purported to be issued by a department or agency of the federal government or of a provincial or foreign government.

Punishment

(4) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) is guilty of an offence punishable on summary conviction.

2009, c. 28, s. 1.

Defence Submissions

[16] The defence submits that the Crown must prove that Tim Banner exists and that the Crown has failed to do so. It is submitted that section 56.1(1) of the Criminal Code purports to relate to another person and contemplates a real person, living or dead. It is noted that one of the exceptions contained in section 56.1(2) relates to genealogical purposes which is supportive that the section contemplates that the documentation must relate to a real person. Noting that section 56.1 of the Criminal Code was enacted under Bill S-4 under the heading "Identity Theft and Related Misconduct", the defence referred the court to the legislative summary (LS 637-E) of Bill S-4 dated 14 April 2009, Revised 5 June 2009. The defence submits that the concern of the amendments set out in Bill S-4 is the impact upon victims of identity theft. To that regard the first paragraph of the legislative summary under the heading "Background" reads as follows:

Identity theft has been called the crime of the 21st century. With the proliferation of personal and financial information as a result of such electronic media as the Internet and associated technology, new life has been given to an old crime. Not so long ago, assuming and using another person's identity was a relatively small-scale operation that required time and effort to execute (e.g., stealing a purse, breaking into a house, overhearing a private conversation). Today, however, perpetrators of identity theft can operate at a distance from their victims, access databases containing large amounts of personal information and transmit stolen data quickly and easily around the world.

[17] The defence submits that in this case there was no evidence of any use of the documents by anyone. It is noted that the defendant told both the U.S. and Canadian border officers that the documents were a "gag gift from a friend" and in his possession "as a joke". It is further noted that the expert witness searched the name "Tim Banner" and could not identify a "Tim Banner" and that the Ministry of Transportation inquiry did not find a licence issued in that name. It is further submitted that the evidence does not establish that the defendant was personating "Tim Banner" and there was no evidence called to establish that "Tim Banner" is a real person. It is submitted that the section contemplates the theft of the identity of real persons and not fictitious persons.

[18] Several cases were referenced by the defence regarding the offence of personation as it then was prior to the amendments contained in Bill S-4.

[19] In R. v. Cole, [1982] O.J. No. 3290 (Ont. Dist. Ct.), the defendant applied for a driver's licence in a fabricated name because his own licence was suspended. The Crown could not prove that there was a person with the same name as the fabricated name. The defendant was charged with the offence of personation contrary to then section 361 of the Criminal Code. The court found that fictitious persons were not included in the definition of "person" in section 361, noting that the section itself sets out that a person means a person living or dead.

[20] In R. v. Northrup, [1982] N.B.J. No. 285 (N.B.C.A.), the appellant had been convicted at trial of personation. The only issue on appeal was whether a person who uses a fictitious name can be found guilty of an offence under section 361 of the Criminal Code. The New Brunswick Court of Appeal accepted the definition of "person" as set out in R. v. Cole, supra, and found that section 361 contemplates the assumption for fraudulent purposes of the identity of another person then existing or who has existed.

[21] In R. v. Mertick, [2008] O.J. No. 5739 (Ont. Sup. Ct.), the defendant was charged in a multiple count information which included one count of personation. The court adopted both R. v. Cole, supra, and R. v. Northrup, supra, and was left in a state of reasonable doubt as to whether the person personated was a fictitious person.

[22] In R. v. Hall, [1984] O.J. No. 42, the Ontario Court of Appeal endorsed both R. v. Cole, supra, and R. v. Northrup, supra, as correct in holding that the word "person" in section 361 of the Criminal Code refers to a human being and does not include a fictitious person.

Court's Analysis

[23] The Crown submits that section 56.1 of the Criminal Code contemplates both real and fictitious identities and the Crown is not obliged to prove that the individual named in the government issued documentation is a real person. I agree with the Crown and find that the cases cited by the defendant in relation to the offence of personation in then section 361 of the Criminal Code do not apply to the new offence set out in section 56.1 of the Criminal Code.

[24] I will commence by quoting in part again from the legislative summary (LS 637-E) of Bill S-4 dated 14 April 2009, Revised 5 June 2009:

5. Identity Fraud (Clause 10)

The bill replaces the current offence of "personation with intent" (f.n. 21: s. 403 of the Code) (i.e., pretending to be another person to gain an advantage for oneself or cause a disadvantage to someone else) with "identity fraud" (clause 10 of the bill amending section 403 of the Code).

[25] I note that section 403 of the Criminal Code maintains the wording found in the former section 361 that the personation must be of "another person, living or dead". The cases cited earlier by the defence would therefore apply to section 403 and one could not be convicted of an offence under this section by personating a fictitious person. However, section 56.1 is a distinct offence focussing on the preparatory stages of identity theft. As stated in the legislative summary (LS 637-E) in reference to the new section 56.1:

The new offence does not require that the prosecution prove the intent to use an identity document in a dishonest or fraudulent manner or in the perpetration of a crime (as is the case, for example, for the new offence of identity theft in clause 10).

[26] As a matter of statutory interpretation, section 56.1 contemplates the possession, as charged in this case, of an identity document that relates or purports to relate, in whole or in part, to another person.

[27] I would quote from the recent decision of the Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 ONCA 578 at paras. 29-32:

29 The question as to how a statutory provision should be interpreted has been answered definitively by the Supreme Court of Canada. On numerous occasions the court has adopted the approach to statutory interpretation espoused by E.A. Dreidger as the only approach, namely:

[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Re Canada 3000 Inc.; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865, at para. 36; Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, at para. 108.

30 Recently, when the Supreme Court of Canada adopted the "plain meaning" of the text in the Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, it did so because the majority's opinion was that the underlying purpose of s. 6 was consistent with the plain meaning of the text. The majority held, at para. 48:

Section 6 reflects the historical compromise that led to the creation of the Supreme Court. Just as the protection of minority language, religion and education rights were central considerations in the negotiations leading up to Confederation, the protection of Quebec through a minimum number of Quebec judges was central to the creation of this Court. A purposive interpretation of s. 6 must be informed by and not undermine that compromise. [Citations omitted.]

31 As this statement indicates, in determining the intention of Parliament, the history that led to the creation of the provision informs a purposive approach to interpretation. Further, in determining parliamentary intent, courts are reluctant to accept interpretations that violate the notions of rationality, coherence, fairness or other legal norms: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008), at p. 8.

32 A "plain-meaning" approach to interpretation is inappropriate because it fails to recognize the history and the context in which the oath exists in this country. As I will discuss, these factors point to a much different understanding of the oath than the one advanced by the appellants and leads to the conclusion that their interpretation is inconsistent with the history, purpose and intention behind the oath.

[28] I find that a plain meaning approach to the interpretation of section 56.1 is in accordance with the intention of Parliament in enacting the legislation. To that regard Black's Law Dictionary, Fifth Edition, defines purport and relate as follows:

Purport. v. To convey, imply, or profess outwardly; to have the appearance of being, intending, claiming, etc. …

Relate. To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with; with "to."

[29] The document in question must either "relate to" or "purport to relate to" another person. "Purport to relate to" on a plain reading of the legislation means that it must appear to refer to another person. In the case before me, the documentation at issue clearly appears to refer to a person other than the defendant, that is "Tim Banner".

[30] Although the legislative summary (LS 637-E) does not speak directly to the issue, nor was I able to locate anything in the submissions or debates before Parliament that spoke directly to this issue, I was able to locate a direct reference to the issue in the Senate Debates (Hansard) 2nd Session, 40th Parliament, Volume 146, Issue 25 wherein on Thursday, April 2, 2009, the Hon. John D. Wallace moved the second reading of Bill S-4, an Act to amend the Criminal Code (identity theft and related misconduct). I will quote in part from the submissions of the Hon. John D. Wallace:

The third new offence will directly target the unlawful handling of government-issued identity documents. These documents are crucial tools for authenticating identity in the course of a wide range of interactions between citizens, the government and the private sector. They are the most fundamental verifiers of our identity, and therefore their abuse is a matter of serious concern and potential serious consequences.

Police sometimes come across an individual in possession of numerous identity documents bearing the names of other people, like drivers' licences, health cards, and social insurance cards. It may be obvious that these documents were intended for criminal use, yet there is currently no offence that can be charged unless it can be proven that the documents were stolen or forged.

To remedy the situation, this bill would create a new offence for unlawfully procuring, possessing or trafficking in specified government-issued identification documents belonging to or containing information of other people, or even containing fictitious identity information. (emphasis is mine)

[31] It is clear that it was intended by the legislators that section 56.1 of the Criminal Code would apply to documents containing both real identity information and fictitious identity information. I find therefore that the offence does not require proof that the person named in the identity document is a real person.

[32] Although it is not necessary to find that the defendant was in possession of the government issued documents for some nefarious purpose in order to make a finding of guilt under this section, I nevertheless will comment upon the defendant's assertion to both U.S. and Canadian Border Services Officers, that the documents had been "a gag gift from a friend" and that he had them in his possession "as a joke". I find that it would be unreasonable to find upon the totality of the evidence that these documents could have come into the hands of the defendant as a "gag gift" or as "a joke". The only evidence of this was the defendant's statements made proximate to his arrest. On the evidence called I reject that these statements were true nor am I left in a state of reasonable doubt on the totality of the evidence that these statement might reasonably be true. To that regard I note that not only was the defendant in possession of three pieces of government issued documentation, he was also in possession of a Bank of Montreal card in the name of "Tim Banner".

[33] In this case the Crown has proved the essential elements of the offence beyond a reasonable doubt and the defendant will be found guilty of all three counts.

Released: February 23, 2015

Signed: "Justice A.J. Watson"

Justice A.J. Watson

[1] The Bank of Montreal card was introduced collectively with the Ontario driver's licence in exhibit 3.