Reasons for Judgment

Date: December 22, 2020

Information No.: 19-5373

Ontario Court of Justice (at Hamilton, Ontario)

Parties

Between:

Her Majesty the Queen

• and -

Darren Smith

Counsel

For the Crown: Mr. G. A. Leach

For Darren Smith: Mr. K. J. McGilly

Judge

NADEL, J.:

The Allegation and the Charges

[1] This case is about (i) what is a false document, (ii) the mens rea required for forgery, and (iii) what constitutes "using" a document as genuine when it is alleged to be a forgery.

[2] Darren Smith, badge No. 907, is a police officer employed by the Hamilton Police Service (HPS). On two occasions, first in 2017 and then in 2018, he was dispatched to homes in Hamilton to pick up firearms for surrender to the police. On each occasion he lodged the surrendered items appropriately with the HPS property branch.

[3] Betty Grant is the HPS civilian employee responsible for, among other things, seeing to the destruction of surrendered weapons. After each surrender, she directed Officer Smith, [in police parlance she "tasked" him], to obtain and then to provide to her either a "waiver" form, a "Firearms Destruction/Receipt/Disposal Waiver", signed by the owner of the weapon documenting that owner's surrender of the weapon to the HPS for disposition of it by the HPS or a statement from the owner signed in Officer Smith's duty notebook to a similar effect.

[4] Officer Smith did neither on either occasion. Rather, he obtained the requisite waiver forms, and in each case, he completed the form in its entirety. He signed the name of the owner on the form in the spot where the owner of the weapon was required to sign. Then, he signed his own name to the form attesting to having witnessed the ostensible signature of the owner. He did so without documenting in any way that he signed the name of the owner. He then uploaded the waiver forms that he had created into the HPS document management system, called NICHE, so that Ms. Grant could access them and print them out.

[5] When Officer Smith's actions came to light, he was charged with one count of forgery and one count of uttering respecting each of the waivers that he created and submitted. He was essentially charged as follows:

(i) that between July 3, 2018 and July 22, 2018, Darren Smith knowingly made a false document; namely, that he forged a signature with intent that it be acted upon or used as genuine and thereby committed forgery, contrary to s. 367 of the Criminal Code;

(ii) that on July 22, 2018, he knowingly used a forged document; namely, a Hamilton Police Service Firearms Destruction Waiver, as if the document was genuine, contrary to s. 368(1.1) of the Criminal Code;

(iii) that on November 30, 2017, he knowingly made a false document; namely, that he forged a signature with intent that it be acted upon or used as genuine and thereby committed forgery, contrary to s. 367 of the Criminal Code; and,

(iv) that on November 30, 2017 he knowingly used a forged document; namely, a Hamilton Police Service Firearms Destruction Waiver, as if the document was genuine, contrary to s. 368(1.1) of the Criminal Code.

The Position of the Defence

[6] That Darren Smith wrote the "signatures" of the owners that appear on the two waiver forms and that Darren Smith scanned the two forms that he created into NICHE is incontrovertible. Despite that, Darren Smith did not commit any of the crimes with which he is charged.

[7] While I shall review the facts and the law later, the position of the defence proceeds as follows.

[8] The waivers are not "false documents." Before the crime of forgery, as alleged, can be committed, it is necessary for the Crown to prove that the waivers are false documents. Since the waivers are not false documents there is no act of forgery and therefore no act of uttering a forged document.

[9] The essential reason why the waivers are not false documents is that the signatures written by Officer Smith are not essential elements of those documents. It follows that since Officer Smith's writing of the signatures is not essential to the waivers his ostensible witnessing of those non-essential elements is equally of no legal moment. While this last proposition was not explicitly submitted, it is a necessary corollary of the defence's position.

[10] Alternatively, if the signatures are an essential element of the waivers, Officer Smith had the implied authority or implied consent of the owners of the weapons to sign their names on the waivers. This is so even if no request was ever made by the owners to have him do so for them and even if Officer Smith never contacted anyone to request their authority or consent to do so.

[11] In the further alternative, even if Officer Smith did not have the implied consent or implied authority of the gun owners to sign their names on the waiver documents, in the circumstances that obtained, it cannot be found to the exclusion of any reasonable doubt that Officer Smith had the necessary mens rea for the offence of forgery as pleaded. Again, if there is no forgery, then there is no uttering of a forged document.

[12] Further, even though Officer Smith uploaded or scanned the waivers that he created into NICHE, that act is so negligible and so minor as to fail to amount to "using" the waivers and hence he is not guilty of uttering those waivers, in any event.

[13] Moreover, given the precise wording of the forgery counts viz: "did knowingly use a forged document … as if the document were genuine," the Crown has particularized the allegations of forgery, which precludes the Crown from any reliance on s. 366(1)(b) of the Code. I will quote the relevant section later in these reasons.

[14] Finally, Mr. McGilly urges that the principles enunciated in R. v. Villaroman, 2016 SCC 33 respecting the law of circumstantial evidence undergird the defence position throughout. Villaroman directs that, when assessing circumstantial evidence, the trier of fact should consider other possible theories and other reasonable possibilities which are inconsistent with guilt. The Crown may need to negative these reasonable possibilities, but it certainly need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused as other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, but not ones based on speculation. (See Villaroman at paragraph [37].)

My Findings of Facts

The Jolly Surrender, 2017

[15] Audrey Jolly is the surviving spouse of Ronald Jolly. They were married for 64 years. They operated a back-hoe business together and Mrs. Jolly was very familiar with her husband's signature.

[16] In 2017, Ronald Jolly was dying from Parkinson's disease compounded by a form of dementia. He was under palliative care in their home at 200 West 33rd Street, Hamilton. In November of 2017 Audrey opened a letter from the RCMP that was addressed to her husband. By this letter the RCMP notified Ronald Jolly of his need to renew his licences for his rifle and his shotgun. Mrs. Jolly spoke to her husband about the letter and she testified that he advised her that he did not want to renew his licences.

[17] So, she contacted the RCMP who directed her to contact the HPS to arrange to surrender the guns. She did so. She did not have Ronald Jolly's power of attorney.

[18] Mrs. Jolly did not recall the specific date when Officer Smith came to her house and picked up her husband's long guns. However, Officer Smith made cursory notes of his attendance in his duty notebook of that time. He noted that on Tuesday, November 21, 2017 at 10:50 a.m., he attended at 200 West 33rd Street. He noted down the particulars of the two guns that he took from that residence. Later during that shift he properly lodged the weapons into the HPS property branch. A portion of Officer Smith's duty notebook from that time containing his notes about attending the Jolly home was filed as Exhibit 12.

[19] Officer Smith never spoke to or met Ronald Jolly. When Officer Smith came into the Jolly living room Ronald Jolly was lying in a hospital bed in a bedroom of the home. The door to that bedroom was open and there was a line of sight into it from the home's living room. So, Officer Smith may have been able to see Ronald Jolly; but, Officer Smith never spoke to Ronald Jolly and never entered his bedroom.

[20] Officer Smith was only in the Jolly home for about five minutes to pick up the guns. He never asked Audrey Jolly to sign anything and she never saw him again, (other than at this trial).

[21] Some time later, on December 21, 2018, HPS Detective Brien Smyth called upon Mrs. Jolly and asked her if the signature on a waiver document that he showed her was written by her husband.

[22] Smyth showed her what became Exhibit 3 at this trial. She told him and she confirmed to me at trial that it was not her husband's signature. She also gave Smyth her husband's Driver's Licence, which did contain Ronald Jolly's true signature. That was made Exhibit 4.

[23] Ronald Jolly died on November 24, 2017.

[24] As noted above, Betty Grant, the HPS civilian employee, was responsible for, among other things, seeing to the destruction of surrendered weapons. Despite being a civilian employee of the HPS she was authorized to direct police officers to complete "Tasks" arising out of weapons being surrendered to the HPS. She required a destruction waiver before she could authorize and arrange for Jolly's guns to be destroyed by having them smelted at a local steel mill.

[25] On November 28, 2017 at 3:59 p.m., Betty Grant wrote to Officer Smith and directed him to provide her with documentation that she required before she could initiate the destruction of the weapons that Officer Smith had obtained from Audrey Jolly.

[26] As noted, Ms. Grant was authorized to direct Officer Smith to comply with the "tasking" directive that she sent to him. She classified the priority of the task that she had set for him as "High". She wrote to Officer Smith in the following terms:

"You submitted to (sic) long arms for destruction however I require the Destruction waiver or a copy of your signed notebook. Please scan into NICHE and advise. Thanks BG"

[27] Officer Smith did not contact Ms. Grant to ask her what she was writing about or to ask her for any further or other information about the task that she had directed him to complete. The Destruction waiver that Ms. Grant referred to is a document available to police officers on the HPS intranet.

[28] On November 30, 2017, Officer Smith completed the waiver that Brien Smyth showed to Audrey Jolly on December 21, 2018. He wrote all of the information that was added onto the pre-printed waiver form, (other than the page number that appears on the top of the document, which is the page number of this item in the defence disclosure package.)

[29] The information and markings that Officer Smith added to the pre-printed form included signing a scrawled signature with a large "R" and a large "J" purporting to be the signature of Ronald Jolly. He also signed the form with his own signature attesting to having witnessed Ronald Jolly's signature. A photocopy of this document, being Exhibit 3, is attached to these reasons.

[30] The form directs the officer witnessing the document to attach the form to the officer's original report and to then forward the document to central records. This instruction is consistent with Ms. Grant's direction to Officer Smith to scan the waiver into the NICHE system and to advise her that he had done so.

[31] Officer Smith complied with Ms. Grant's tasking directive. He documented that he had completed the waiver report on November 30, 2017 at 4:40 p.m. and he documented that he had entered the waiver into NICHE on that same date and at that same time.

[32] Officer Smith's duty notebook for November 30, 2017 contains no reference to any attendance on Ronald Jolly nor any attendance at the Jolly home.

[33] Relying on the Jolly waiver that Officer Smith created and filed in NICHE, Ms. Grant arranged for Ronald Jolly's guns to be destroyed by having them smelted at Dofasco on April 11, 2018.

The Shkumat Surrender, 2018

[34] Ruth Shkumat and her sister, Jean Ventura, were the surviving children of their mother and father who died in 2017 and 2018 respectively. In 2018 the sisters were in the process of emptying out their parents' home at 262 East 13th Street, in Hamilton. During those efforts Jean Ventura found her father's duck-hunting rifle as well as some ammunition, a shotgun shell and a broken flare. The sisters decided to hand in these items to the HPS.

[35] They left the items on the lid of a freezer in their parent's basement to be available for pick up by the HPS.

[36] Ms. Ventura's husband called the HPS to tell them about the items and the sisters' desire to hand them in. As a result, Officer Smith was dispatched to and attended at 262 East 13th Street on June 13, 2018. Jean Ventura recalled the date as she had arranged for a charitable furniture pick-up for that date. By coincidence, Officer Smith attended that day, too.

[37] Officer Smith noted his attendance in his duty book. An excerpt from his duty book that documented his attendance on June 13, 2018 was filed as Exhibit 8. Subsequently, Officer Smith lodged a bolt action Cooey 78 rifle, 37 .22 calibre shells and one 12-gauge shotgun shell with the HPS property branch.

[38] Officer Smith told the sisters that he was not certain about whether he ought to take the flare. He left the home briefly to make an inquiry about whether he could take it too. That, at least, is what Ms. Shkumat inferred, and I so find. Officer Smith came back and told her that he could take the flare and did so, although what he did with it thereafter is unknown, as he did not lodge it in property.

[39] As noted, the flare was broken.

[40] Before Officer Smith left Ms. Shkumat asked him if she had to sign anything. He told her, "No" and left. He was only at the home for perhaps 20 minutes and the longest period of his attendance was the time that he took to find out if he could take the flare.

[41] Before Officer Smith left, he said that he needed a name and a number, and he took down Ruth Shkumat's name and her telephone number. The number she gave him rang at her home address at 2 Clifton Road in Dundas, Ontario.

[42] The sisters never saw or met with Officer Smith subsequently. They sold their parents' home in September of 2018.

[43] On June 15, 2018 at 11:19 a.m., Betty Grant tasked Officer Smith in the following terms:

"You submitted a rifle and ammo for destruction however I require the firearm waiver or a copy of your signed notebook to destroy. Please scan into NICHE and advise. Thanks BG"

[44] Ms. Grant went on sick leave for about two months after tasking Officer Smith with this duty. When she returned to work, she caught up with her work and on August 13, 2018 she noted that the waiver that she had tasked Officer Smith to obtain was now on file.

[45] On July 22, 2018, Officer Smith scanned a waiver into NICHE to meet the requirements of the task that Betty Grant had assigned to him. That waiver was ostensibly signed on July 3, 2018 by Ruth Shkumat. Ruth Shkumat's purported signature was attested to by Officer Smith as a police officer witnessing that signature.

[46] The precise date when Officer Smith created this document is unknown. It was not signed by Ruth Shkumat on June 13, 2018. It had to have been created between the date when Betty Grant tasked him on June 15, 2018 and prior to Officer Smith scanning the document into NICHE on July 22, 2018.

[47] On December 21, 2018, Detective Brien Smyth attended upon Ruth Shkumat at her home address in Dundas, Ontario, (after first going to 262 East 13th Street in Hamilton, where, of course, he did not find her.)

[48] Detective Smyth showed Ms. Shkumat a waiver ostensibly dated on July 3, 2018 and ostensibly signed by her. This document was filed as Exhibit 7. Smyth asked her if she had signed it. She told him and confirmed to me that the signature on the document was not her signature and that she had not signed the document.

[49] Smyth asked her if she would sign a new version of that document and she did so on December 21, 2018, after which Smyth witnessed her signature. The waiver that she signed for Smyth was filed as Exhibit 6. The waiver that she did not sign was filed as Exhibit 7. Copies of the Jolly waiver, (Exhibit 3), and these Shkumat waivers are appended to these reasons.

[50] Ms. Grant arranged to have the firearm that Ms. Shkumat surrendered smelted on April 16, 2019.

[51] Ms. Grant testified at length to many of the aspects of her responsibilities for the HPS.

[52] When a firearm is lodged for destruction she does as complete a history of the weapon and the people involved with the weapon as she can to ensure its provenance and its relevance to any other occurrences. As well she contacts the RCMP to keep them informed about the destruction of any firearm.

[53] Ms. Grant testified that she tasked Officer Smith with obtaining the waivers because she required them before she could proceed with having the weapons smelted.

The Criminal Code

False Document

[54] The Code defines "false document" in s. 321:

"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;

Forgery

[55] The offence of forgery is contained in s. 366 of the Code:

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.

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.

(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.

(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.

Exception

(5) No person commits forgery by reason only that the person, in good faith, makes a false document at the request of a police force, the Canadian Forces or a department or agency of the federal government or of a provincial government.

Particularization

[56] The defence submits that given the specific wording of the two counts of forgery, the Crown has particularized those counts, contrary to s. 366(1)(a) so that it must prove:

(i) that Darren Smith on or between July 3rd and July 22nd of 2018 made a false document by forging a signature with intent that it be acted upon or used as genuine to the prejudice of any one whether within Canada or not; and,

(ii) that Darren Smith on or about November 30th 2017 made a false document by forging a signature with intent that it be acted upon or used as genuine to the prejudice of any one whether within Canada or not.

[57] The words in bold italics do not appear in the forgery counts in the information. However, the other language in the forgery counts – viz: "that Darren Smith … did knowingly make a false document to wit: forged a signature with intent that it be acted upon or used as genuine and did thereby commit forgery, contrary to the provisions of Section 367 of the Criminal Code of Canada" tracks some of the language of s. 366(1)(a) of the Code. That subsection contains the words in bold italics quoted in paragraph [56], above.

[58] As a result of the wording used in the forgery counts the defence contends the Crown must prove a forgery that caused actual prejudice to someone; that it is insufficient for the Crown to merely prove that anyone was induced to do or refrain from doing anything because they believed the waivers in question were genuine, which is the language of s. 366(1)(b).

[59] The defence takes this position even though:

• the offence of forgery in each of the forgery counts is charged contrary to s. 367, the penalty section;
• the defence did not seek any order for particulars of the offences of forgery alleged;
• the wording of the forgery counts is consistent with the "forms of charges" set out in Martin's Annual Criminal Code;
• the words in bold italics, above, do not appear in the information; and,
• no defence complaint or defence application was brought alleging a contravention of s. 581 or s. 583 of the Code.

[60] In my view, this particularization submission is of no legal moment for a variety of reasons. Assuming that the Crown is bound to prove the particularized case as the defence submits, the Crown has, to the exclusion of any reasonable doubt, done so.

[61] Betty Grant told Officer Smith that she required each of the waivers so she tasked Officer Smith to provide them. In the Jolly surrender Betty Grant acted to her potential detriment and contrary to her employment directives by arranging for the smelting of the weapons surrendered by Audrey Jolly in the absence of a valid waiver or signed notebook statement. But for the intervention of Detective Brien Smyth she would have done so with respect to the Shkumat surrender as well.

[62] Moreover, with respect to both waivers the HPS suffered actual prejudice too. That prejudice included treating Officer Smith as if he was a responsible and honest police officer doing yeoman's work in the period after he committed these forgeries.

[63] The information specifically alleges that Officer Smith knowingly made a false document by forging a signature "with intent that it be acted upon or used as genuine." The information does not specifically allege that he made a false document "with intent that a person should be induced, by the belief that the document is genuine, to do or to refrain from doing anything," which is the language in s. 366(1)(b).

[64] Nonetheless, to act upon a document or to use the document as genuine is, in my view, the equivalent of doing something or refraining from doing something as a result believing that the document is genuine. In either case the essence of the offence is the creation of a false document with the intention that it be treated as a real or true document.

[65] Moreover, as noted above, the forgery charges were charged contrary to the penalty section and not contrary to s. 366(1)(a). Further, the words to the prejudice of any one whether within Canada or not are not part of forgery charges as pleaded. Despite proof of prejudice to Ms. Grant and the HPS as detailed above, the Crown was not obliged to prove that averment, even though it has done so.

[66] As discussed later in these reasons, neither prejudice nor an intention to cause it are elements of the offence of forgery. This expanded view of the intent required to be proved for the offence of forgery, together with a concise resumé of the debate surrounding this subject in Canadian law, is expounded in R. v. Sebo, 1988 ABCA 200 that I refer to below.

[67] I find Darren Smith guilty of each of the four counts with which he is charged, to the exclusion of any reasonable doubt. In the balance of these reasons I shall try to explain why I have done so.

Discussion

False Document – Materiality

[68] I begin with the issue of whether the waivers that Officer Smith created were false documents.

[69] As applied to this case, a false document means a document the whole or a material part of which purports to be made by or on behalf of a person who did not make it or authorize it to be made. Obviously neither Ronald Jolly nor Ruth Shkumat made either document. They did not sign their names to the waivers, although each of the two documents created by Officer Smith purport to be signed by them.

[70] The defence contends that the purported signatures written by Officer Smith are not a material part of either document.

[71] In my view that submission is incorrect. I find that if these documents had been submitted to NICHE without a signature Betty Grant would not have accepted them nor would she have acted upon them. She would not have accepted them any more than a payee would accept a cheque without a payor's signature, or any more than a pharmacy would accept a prescription without a doctor's signature or any more than Service Ontario would accept a motor vehicle ownership transfer without a signature.

[72] Indeed, in any endeavour to be documented, a signed document demonstrates that signer's agreement to the document's terms by virtue of their signing. The signatures of Ronald Jolly and Ruth Shkumat were material to these waivers. The task Ms. Grant set for Officer Smith was to obtain a signed waiver or a signed notebook.

[73] Similarly, if the required signature was not material, there would be no need for a witness to that signature. Documents that ask for a witness to a signature require the witness to authenticate the signature precisely because the signature is material to the document.

[74] I am of the view that resort to the reported cases is unnecessary to determine whether the signatures on these waivers is a material part of these documents. I find and rule that in each case the signature of the maker of the document was and is a material part of the document.

[75] Nonetheless, resort to the controlling authority would require the same conclusion.

[76] In R. v. Gaysek, [1971] S.C.R. 888, an inventory contained false entries despite being certified as true and correct. The lies about the entries did not change the nature of the document, it remained a purportedly true inventory. Yet, the inventory was false for the purposes for which it was created. Likewise, Officer Smith created these waivers and used them as purportedly true documents. But they were false documents for the purposes for which they were created.

[77] In R. v. Ogilvie, 81 C.C.C. (3d) 125, Justice Fish explained what Gaysek stood for. He wrote that Gaysek decided that "a document which is false in reference to the very purpose for which it was created" is one that is false in a material particular, within the meaning of s. 321 of the Criminal Code. So, in order to be a false document, the document in question must not simply "tell a lie"; it must be false in relation to the purpose for which it was created. That is clearly true, too, with respect to the two waivers that Officer Smith created.

Authorization

[78] As noted above at paragraph [54] the Code defines "false document" to mean a document the whole or a material part of which purports to be made by or on behalf of a person who did not make it or authorize it to be made. (emphasis added) The defence contends that neither waiver created by Officer Smith is a false document because Ronald Jolly authorized Officer Smith to create a waiver for him and likewise, Ruth Shkumat authorized Officer Smith to create a waiver for her.

[79] Merely stating those propositions demonstrates their wrongness. Officer Smith never spoke to Ronald Jolly. Audrey Jolly did not have Ronald Jolly's power-of-attorney. Ronald Jolly was dead when Officer Smith purported to write Ronald Jolly's signature on the waiver that he, (Officer Smith), created. Officer Smith never asked Audrey Jolly for her authorization to sign any documents on her behalf nor did he ask her for her authorization to sign any documents on her husband's behalf. Neither Ronald Jolly nor Audrey Jolly authorized Officer Smith to sign the waiver that Officer Smith created. In my view there is no basis in law or on these facts to support a finding that either Ronald Jolly or Audrey Jolly authorized Officer Smith to create the waiver that Officer Smith fabricated. I make that finding to the exclusion of any reasonable doubt.

[80] I make the same findings and to the same degree with respect to the Ruth Shkumat waiver. Officer Smith never asked Ruth Shkumat or Jean Ventura for their authorization to sign any documents on their behalves nor did he ask them for their authorization to sign any documents on behalf of their father or their father's estate. Neither Ruth Shkumat nor Jean Ventura authorized Officer Smith to sign the waiver that Officer Smith created. In my view there is no basis in law or on these facts to support a finding that either Ruth Shkumat or Jean Ventura authorized Officer Smith to create the waiver that Officer Smith fabricated.

[81] The defence contends that even if the Jollys or Ruth Shkumat or Jean Ventura did not formally authorize Officer Smith to sign a waiver as he did, by their action of surrendering weapons to the HPS they consented to Officer Smith creating the waivers. At the very least, the defence contends that Officer Smith had their implied authority to do so. Mr. McGilly submits that support for this submission can be gleaned from R. v. Ewanchuk, [1999] S.C.J. No. 10. There, Major J. at paragraph [31] said: "The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law."

[82] The doctrine of implied consent is often discussed in allegations arising out of contact sports, especially hockey. The comment by Lacourciere J.A., in R. v. Leclerc, [1991] O.J. No. 1533 is useful. He said: "The weight of judicial authority appears to be that a player, by participating in a sport such as hockey, impliedly consents to some bodily contact necessarily incidental to the game, but not to overly violent attacks, all of which should be determined according to objective criteria."

[83] While there is no similarity to the facts in this case, there is a principle that can be gleaned from Justice Lacourciere's comment; namely, attempting to determine if there is some necessary implication grounded in the act of voluntarily surrendering a firearm to a local police service.

[84] I do not find that there is any necessarily incidental obligation on a surrenderer to sign the kind of waiver required by the HPS and hence no implied consent is given by the surrenderer to have a police officer do so for them. At most a mutual signing of a bare receipt by the surrenderer and the receiving police service might necessarily be implied in turning over an unwanted firearm to a local police service. However, even that potentially limited implication is uncertain. I say that because R. v. Wills, [1992] O.J. No. 294 sets out the elements for a valid consent, including an implied consent, (albeit in the context of waiving the right to be secure from an unreasonable search and seizure).

[85] Wills provides the elements of a valid consent whether express or implied as follows:

(i) there was a consent, express or implied;

(ii) the giver of the consent had the authority to give the consent in question;

(iii) the consent was voluntary in the sense that that word is used in Goldman, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;

(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,

(vi) the giver of the consent was aware of the potential consequences of giving the consent.

[86] In my view many of these requirements, particularly (ii), (iv) and (v) are missing, so far as the Jolly document is concerned and (iv) and (v) are absent from the Shkumat waiver.

[87] Moreover, it is important to note, as did the Crown in its reply submissions, that the waiver document is far more than a mere acknowledgment that a firearm is being voluntarily surrendered.

[88] The "Firearms Destruction / Receipt / Disposal Waiver" contains a number of statements, declarations, acknowledgments, waiver of legal claims and promises of indemnification. All of the following are contained in the document, which is printed on the letterhead of the HPS:

I HEREBY VOLUNTARILY TURN OVER TO THE HAMILTON POLICE SERVICE THE FOLLOWING ITEM FOR DISPOSAL OR DESTRUCTION:

I HEREBY FULLY AND FINALLY RELINQUISH ALL RIGHTS, TITLE OR CLAIM TO POSSESSION AND / OR OWNERSHIP OF THE LISTED ITEMS, AND DECLARE THAT I AM ABANDONING THE PROPERTY ABSOLUTELY WITH NO INTENTION OF EVER RECLAIMING IT. I UNDERSTAND AND AGREE THAT THE POLICE SERVICE TAKES NO RESPONSIBILITY FOR THE LOSS / DISPOSAL / DESTRUCTION OF THESE ITEMS, AND I AGREE TO MAKE NO CLAIM AGAINST THE POLICE SERVICE, THE POLICE SERVICES BOARD, OR THE CITY OF HAMILTON IN THIS REGARD, AND TO PROTECT THE POLICE SERVICE ETC. (sic) FROM CLAIMS THAT MAY BE MADE BY OTHERS.

[89] While all of the words in the waiver are important, the final promise to protect, i.e., to indemnify the police service etc. (sic) is particularly significant since the HPS does not investigate matters of inheritance or require proof of probate. Equally, Officer Smith did not ask for any proof of ownership of the items.

[90] Given the extent of the statements, declarations, acknowledgments, waiver of legal claims and promises of indemnification contained in the waiver forms, I hold that none of the people involved, (viz: Audrey Jolly, Ronald Jolly, Ruth Shkumat or Jean Ventura), gave implied consent to Officer Smith to fabricate the waivers in issue on their behalves.

[91] The actus reus of the offence of forgery is clearly made out. Officer Smith made false documents knowing them to be false.

Mens Rea for the Offence of Forgery

[92] As noted above in paragraph [11] the defence position is it cannot be found to the exclusion of any reasonable doubt that Officer Smith had the necessary mens rea for the offence of forgery. Hence, a review of the law respecting the mens rea of forgery is required.

Marshall J.A. in R. v. Foley, [1994] N.J. No. 166 is my starting point. There, under the heading, "The ingredients of forgery" one finds:

18 In a leading English forgery case, Welham v. Director of Public Prosecutions (1961) A.C. 103, Lord Denning at pp. 132-133, singles out the following passage from Vol. 2 of East's Pleas of the Crown at p. 852 as best expressing the common law definition of forgery:

… Forgery at common law denotes a false making (which includes every alteration of or addition to a true instrument), a making malo animo, of any written instrument for the purpose of fraud and deceit. …

20 … [T]he making of a false document is the essence of forgery at common law. It remains so in today's Criminal Code. This is apparent from s. 366(1) which sets out the essential ingredients of forgery.

21 … [T]he scope of the actus reus and mens rea of forgery now depend upon the provisions of the Criminal Code which supersedes the common law.

22 There is a view that the concept of deception as an element of forgery has been expanded in the Code to transcend that of fraud which the common law required to ground a forgery conviction. In this context the following distinction, … between the intents to deceive and to defraud, … is apropos:

To deceive is … to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.

23 Proponents of the proposition that the intent component of forgery has been expanded beyond fraud in the Code point to paragraph (b) of s. 366(1) in support of their contention. This provision, they advocate, merely requires that the forger induce a state of mind that a document, which he or she knows to be false, is genuine. Inasmuch as this paragraph is expressed disjunctively from the preceding paragraph (a), which does invoke prejudice, they posit that the statutory offence of forgery requires merely an intent to deceive. Relating this specifically to s. 366(1)(b), this viewpoint asserts that the requisite intent is to falsely induce a state of mind by creating the impression that the document is genuine. Under this submission there would be no need to go further to establish an intent to defraud or even to cause prejudice. (emphasis added)

24 This expanded view of the intent of the offence of forgery, together with a concise resumé of the debate surrounding this subject in Canadian law over the years, is expounded in R. v. Sebo, 1988 ABCA 200, 60 Alta. L.R. (2d) 53 (Alta. C.A.). …

[93] Accordingly, I next turn to Sebo.

[94] In Sebo Kerans J.A. retraced the history of the Canadian law of forgery to determine whether a conviction for forgery required proof of an intention to defraud or whether proof of an intention to deceive sufficed. Despite the legal acumen demonstrated by Justice Keran's exegesis of the law of forgery, I am content to skip to his conclusion, which I adopt. He concluded:

In my view, this context leaves the question of the purpose of the words in s. 326, [now s. 388, the offence of use, trafficking or possession of forged document], beyond rational dispute even though they might be said to have a harsh effect. Today's Code reflects the view that it is better to have a definition that catches the utterer and the forger who hope never to cause harm even at the risk of catching those who … not only did not hope to gain advantage but also did not create a significant risk of harm. …

I accept that, as a result, s. 324(1)(a), [now s. 366(1)(a)], is anomalously superfluous. The best explanation of the anomaly is that the Code emphasizes that it catches both the old and the new mental element. …

In conclusion, I agree … that an intent to defraud and an awareness of the precise intent of the forger are not required mental elements of the offence of uttering. … (emphasis added)

I must now deal with the principal argument for the defence. …

The argument incorrectly assumes that an intent to defraud is required by the Code for a conviction for forgery. I earlier dealt with the intent for forgery and uttering in order to dispose of this. The intent required of each is the same. (emphasis added)

[95] Accordingly, the intention required to be proved to ground a conviction for forgery is merely the intention to deceive. The Crown is not required to prove the forger had an intention to defraud, which is to say that for a conviction for forgery the Crown need not prove that Officer Smith intended to cause prejudice or harm.

[96] I reject the defence submissions that Officer Smith's actions were no more than carelessness or negligence.

[97] Clearly Officer Smith was a careless forger in one respect. He knew that Ronald Jolly was very ill, but he was careless in not determining if Mr. Jolly was still alive when he forged his signature. As a result of that carelessness, he forged Mr. Jolly's signature several days after Mr. Jolly had died.

[98] These forgeries were not careless acts otherwise. A look at the ostensible signatures shows that Officer Smith scrawled signatures that started with the correct initials of Ronald Jolly's and of Ruth Shkumat's names. Those actions were obviously intentional. Moreover, merely recounting the steps he had to take shows that Officer Smith's actions were not the product of mere carelessness.

[99] Officer Smith had to, in each case, receive and read the task set for him by Ms. Grant. He had to obtain a waiver form in each case. He had to fill out the form in each case. He had to forge the signatures on each form and then he had to submit the forms that he created in NICHE. That is not a description of carelessness. That is intentionally mendacious behaviour.

[100] Likewise, Officer Smith's actions were not the product of negligence in the sense of failing to take proper care in the performance of his duties. He rejected and abdicated his sworn duty in these cases. These were not acts of negligence. They were acts of malfeasance.

[101] Regardless of what motivated Officer Smith to create these two forgeries, his intention to deceive by committing them has, in each case, been proved to the exclusion of any reasonable doubt.

The Counts of Uttering

[102] The defence submits that Officer Smith's use of the forged waivers; viz. scanning or uploading them in the HPS NICHE system, were acts so negligible as not to amount to "using" the forgeries. Hence, he is not guilty of the two counts of uttering them contrary to s. 368(1.1) of the Code.

[103] Respectfully, I do not accept that submission. As noted by Mr. Leach in his submissions in reply, whether one hands a forged cheque to a teller in person or deposits it into an ATM that forged cheque is "used" in either case. Moreover, Mr. Leach points to the definition of "document" found in s. 321 of the Code: "document means any paper, parchment or other material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device, …" (emphasis added)

[104] Additionally, in R. v. Stevenson, [1980] O.J. No. 1621, the court held that putting a false affidavit into a photocopy machine to copy it was a "use" of it. Further, Justice Kerans, in Sebo, notes that R. v. Harris, (1965) Crim. App. R. 330 (U.K. C.C.A.) provides that when a photocopy of a forgery is made for wider distribution that too is a "use" and therefore an uttering of the forged original.

[105] I am satisfied to the exclusion of any reasonable doubt that by uploading the two waivers that he forged into the HPS NICHE system Officer Smith used the two waivers. I find, to the exclusion of any reasonable doubt, that Officer Smith is guilty of the two counts of uttering with which he is charged.

Similar Fact is not in Issue nor Applied

[106] Before completing these reasons I wish to stress, that while I have often talked about the two waivers in the same sentences and paragraph, I have not used the evidence adduced in support of the Jolly waiver to arrive at my conclusion on the Shkumat waiver or visa versa.

[107] While R. v. T.B.L., [2003] O.J. No. 1502 (C.A.), provides some support to the Crown in seeking to have me apply the evidence across counts (which Mr. Leach urged upon me albeit not very strenuously), the more recent decision of our Court of Appeal in R. v. Tsigirlash, 2019 ONCA 650, precludes my doing so absent a formal similar fact application. The Court in Tsigirlash severely limited the use of evidence across counts barring the circumstances that obtained in T.B.L.

[108] In arriving at my findings of fact and my legal conclusions I have not applied the evidence across counts between the Jolly waiver and the Shkumat waiver. Each fact pattern is more than sufficient to sustain the facts that I have found and the conclusions I have reached independent of each other, (albeit for ease of writing I have referred to both waivers in the same sentences or paragraphs, rather than expanding the length of this already too long judgment.)

[109] As noted earlier, I find Darren Smith guilty on all counts.

Conclusion

Dated at Hamilton, the 22nd day of December 2020.

J.S. Nadel, O.C.J.