R. v. Benson (M.) et al., (2012) 284 Man.R.(2d) 204 (CA)

• Judge: Scott, C.J.M., Steel and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 12, 2011
• Jurisdiction: Manitoba
• Citations: (2012), 284 Man.R.(2d) 204 (CA);2012 MBCA 94

R. v. Benson (M.) (2012), 284 Man.R.(2d) 204 (CA);

      555 W.A.C. 204

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. OC.039

Her Majesty The Queen (appellant/respondent) v. Warren Helgason (accused/respondent/appellant)

(AR 10-30-07392; AR 10-30-07470)

Her Majesty The Queen (appellant/respondent) v. Marvin Benson (accused/respondent/appellant)

(AR 10-30-07394; AR 10-30-07471)

(2012 MBCA 94)

Indexed As: R. v. Benson (M.) et al.

Manitoba Court of Appeal

Scott, C.J.M., Steel and Hamilton, JJ.A.

October 11, 2012.

Summary:

The accused (Benson and Helgason) were on the committee that assessed applications under Manitoba's resettlement program for Hecla Island. Initially, the accused and two others were charged with 31 counts of fraud, forgery and uttering contrary to ss. 380(1)(a), 367(a) and 368(1)(c) of the Criminal Code. The alleged victim in each count was the Government of Manitoba. A number of counts were dismissed following a motion for a directed verdict: see (2010), 252 Man.R.(2d) 213.

The Manitoba Court of Queen's Bench, in a decision reported at (2010), 254 Man.R.(2d) 107, found Benson guilty of two counts of forgery contrary to s. 367(a) of the Criminal Code, and acquitted him of two counts of forgery and one count of fraud. The court found Helgason guilty of one count of fraud, two counts of forgery and two counts of uttering. He was acquitted of two counts of forgery, two counts of uttering and one count of fraud. Benson received an absolute discharge. Helgason was sentenced on only one count of fraud (the Kienapple principle). Benson appealed his conviction on the two counts of forgery. The Crown appealed the acquittals. Helgason appealed his sentence of a $1,500 fine and forfeiture of the house he acquired through fraud. He argued that the trial judge erred in law by concluding that a conditional discharge would not satisfy the sentencing principle of general deterrence as opposed to a fine.

The Manitoba Court of Appeal dismissed all the appeals, both those of the accused and those of the Crown, and those relating to conviction as well as sentence. With respect to the Crown appeals on the acquittals, the restriction of a Crown appeal to a question of law doomed the appeals, since the court found that the issues raised by the Crown were of mixed fact and law.

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - The Manitoba Court of Appeal discussed "the minefield that is the law of forgery" - See paragraphs 32 to 38.

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - In this case, the accused (Benson) added a false date to the relevant document - The trial judge held that the purpose of the document was to "memorialize" an agreement between Benson and Grimolfson, and that the document was therefore not false - The Manitoba Court of Appeal stated that "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" - There was little case law on the subject of the addition of a false date in relation to a charge of forgery - "Ultimately, the available cases appear to suggest that it boils down to whether the date is truly material to the fundamental nature of the document ." - The antedating did not affect the legal rights, obligations and intentions between the accused and Grimolfson - The primary purpose of the document was to prove that Grimolfson approved of the devolution of whatever interest she rightly had in the property - The insertion of the false date did not make the document different from what it was, namely, an assignment from Grimolfson freely given - In other words, the date of the document was not an essential component in light of the found purpose of the document - See paragraphs 44 to 62.

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - The accused (Benson) was on the advisory committee that assessed applications under Manitoba's resettlement program for Hecla Island - Benson added a false date to the relevant document, an assignment of an applicant's interest in a particular lot - The trial judge found that there was no false document, and that Benson's intent was to memorialize an earlier verbal agreement, not to deceive - On appeal, the Crown argued that the trial judge erred in his finding with respect to intent, and that Benson created the document to mislead the investigators - The Manitoba Court of Appeal dismissed the appeal - The evidence was that the government was not concerned if an eligible person assigned their interest, as long as it was with informed consent and voluntary - Benson, as a member of the advisory committee, knew of the government's attitude - "Given that evidence, it cannot be said that Benson undertook his action with the intention of fooling the government for his 'nefarious purpose or advantage'" - Even if the trial judge was wrong on his findings of fact, the issue was, at best, one of mixed fact and law, and the Crown was limited to an appeal on a question of law alone - See paragraphs 64 to 71.

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - As a result of complaints regarding the administration of Manitoba's resettlement program, the Auditor General's Office conducted an investigation - The accused (Benson), a member of the advisory committee that assessed applications under the program, was interviewed - He submitted two documents which he had arranged for completion shortly before the interview - Benson was found guilty of forging those documents (Criminal Code, s. 367(a)) - On appeal, Benson argued that the trial judge was inconsistent in his application of the law to the facts in the various counts - The Manitoba Court of Appeal examined the "totality of the evidence" in relation to the two counts, and concluded that it was that totality that supported the trial judge's conclusion that the relevant documents were false in relation to the very purpose for which they were created - See paragraphs 72 to 91.

Criminal Law - Topic 1972

Offences against property - Forgery - Uttering a forged document - The Manitoba Court of Appeal stated that "[F]orgery differs from uttering, although the same document may be involved in each offence. Forgery is the making of the document; uttering is the use of the document." - See paragraph 33.

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - The Manitoba Court of Appeal discussed the elements of the offence of fraud established by s. 380 of the Criminal Code, and engaged in an analysis of the relevant case law - See paragraphs 135 to 153.

Criminal Law - Topic 2001

Fraudulent transactions - Fraud - What constitutes fraud - The accused (Benson and Helgason) were on the committee that assessed applications under Manitoba's resettlement program - Benson and Helgason, respectively, were charged with defrauding the government of Manitoba of a lease of vacation home Lot 13 (count 21) and of vacation home Lot 23 (count 26) - The Crown appealed the acquittals on both counts - A central plank in the Crown's submission was that the government suffered a deprivation, even if both accused were aware that the government did not care if someone else signed in the name of an eligible landowner - The Manitoba Court of Appeal dismissed the appeals - Based on the findings of fact, the trial judge concluded that there was reasonable doubt in regards to the offence, in particular whether the government was induced to act to its detriment by the actions of the accused - There was no reviewable error of law - The Crown's appeal rested on a disagreement with the judge's assessment of the facts and their consequences (a question of mixed fact and law) - A finding of fraud, particularly "dishonest deprivation", involved issues of fact or mixed fact and law - As well, the mens rea element in fraud cases had been referenced as a question of fact - See paragraphs 130 to 153.

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 4856

Appeals - Indictable offences - Grounds of appeal - Illegal or improper sentence - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 4859

Appeals - Indictable offences - Grounds of appeal - Question of fact or question of mixed law and fact - [See third Criminal Law - Topic 1970 and second Criminal Law - Topic 2001 ].

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - [See third Criminal Law - Topic 1970 and second Criminal Law - Topic 2001 ].

Criminal Law - Topic 5859

Sentence - Fraud - Both accused, Benson and Helgason, were on the committee that assessed applications under Manitoba's resettlement program for Hecla Island - Helgason was found guilty of one count of fraud, two counts of forgery and two counts of uttering forged documents - Benson was found guilty of two counts of forgery, and received an absolute discharge - Helgason's fraud conviction related to the acquisition of a house on Hecla Island - On the Kienapple principle, the trial judge stayed Helgason's convictions with the exception of the fraud conviction - Helgason sought a conditional discharge - The trial judge imposed a fine of $1,500 - Helgason appealed, arguing that the trial judge erred in law by concluding that a conditional discharge would not satisfy the sentencing principle of general deterrence, and by failing to appropriately consider the sentencing principles regarding parity - The Manitoba Court of Appeal dismissed the appeal - The trial judge did not apply different standards to Helgason as opposed to Benson; Helgason was being sentenced for a more serious offence - Moreover, while Helgason had benefitted from his crime, Benson did not use the two documents he forged to mislead the Auditor General's investigation - Although personal circumstances of both accused were similar, the trial judge highlighted the differences which led him to impose a fine - The fine was well within the range of sentences available for the offence - See paragraphs 154 to 164.

Cases Noticed:

Scott and Treasury Board (Canadian Heritage - Parks Canada), [1997] C.P.S.S.R.B. No. 29, refd to. [para. 7].

Gaysek v. R., [1971] S.C.R. 888, refd to. [para. 28].

R. v. Morris (B.), [2006] O.T.C. 181 (Sup. Ct.), refd to. [para. 38].

R. v. Winsor (1865), 10 Cox C.C. 276 (Q.B.), refd to. [para. 40].

R. v. Ogilvie (F.) (1993), 54 Q.A.C. 52; 81 C.C.C.(3d) 125 (Que. C.A.), refd to. [para. 43].

R. v. Nuosci (1991), 51 O.A.C. 41; 6 O.R.(3d) 316 (C.A.), leave to appeal dismissed (1992), 139 N.R. 160; 56 O.A.C. 159 (S.C.C.), affd. [para. 49], refd to. [para. 48].

R. v. McMillan (G.) (2003), 176 O.A.C. 215 (C.A.), refd to. [para. 50].

R. v. Semeniuk (M.K.), [2005] B.C.T.C. Uned. 999; 2005 BCSC 1473, affd. (2007), 245 B.C.A.C. 110; 405 W.A.C. 110; 2007 BCCA 399, refd to. [para. 51].

R. v. Wells (1939), 27 Cr. App. R. 72 (C.C.A.), refd to. [para. 56].

Groner v. Lake Ontario Portland Cement Co. (1960), 23 D.L.R.(2d) 602 (Ont. C.A.), revd. [1961] S.C.R. 553, refd to. [para. 57].

R. v. Ritson (1869), Law Rep. 1 C.C.R. 200, refd to. [para. 58].

R. v. Hannah (1919), 46 D.L.R. 122 (Sask. C.A.), refd to. [para. 61].

R. v. Sebo (1988), 87 A.R. 141 (C.A.), refd to. [para. 67].

R. v. Sommani (M.) (2007), 239 B.C.A.C. 126; 396 W.A.C. 126; 2007 BCCA 199, refd to. [para. 67].

R. v. Couture (1991), 64 C.C.C.(3d) 227 (Que. C.A.), refd to. [para. 67].

R. v. Angrignon, [1996] O.J. No. 1344 (Gen. Div.), refd to. [para. 68].

R. v. Foley (E.F.) (1994), 120 Nfld. & P.E.I.R. 24; 373 A.P.R. 24 (Nfld. C.A.), refd to. [para. 94].

Moss (Bankrupt), Re (2009), 235 Man.R.(2d) 286; 2009 MBQB 21, revsd. (2010), 251 Man.R.(2d) 286; 478 W.A.C. 286; 2010 MBCA 39, leave to appeal dismissed (2010), 413 N.R. 390 (S.C.C.), refd to. [para. 115].

R. v. Lemire, [1965] S.C.R. 174, refd to. [para. 130].

R. v. Theroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 136].

R. v. Olan, Hudson and Hartnett, [1978] 2 S.C.R. 1175; 21 N.R. 504, refd to. [para. 137].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C 161, refd to. [para. 138].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 149].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 149].

R. v. Bouchard-Lebrun (T.), [2011] 3 S.C.R. 575; 423 N.R. 48; 2011 SCC 58, refd to. [para. 149].

R. v. Ross (D.D.A.) (1996), 107 Man.R.(2d) 248; 109 W.A.C. 248 (C.A.), refd to. [para. 150].

R. v. Lauer (J.M.) (2011), 306 Nfld. & P.E.I.R. 289; 951 A.P.R. 289; 2011 PECA 5, refd to. [para. 151].

R. v. Marine Resource Analysts Ltd. (1980), 43 N.S.R.(2d) 1; 81 A.P.R. 1 (C.A.), refd. to. [para. 152].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 161].

R. v. Wallace (B.K.) (2012), 280 Man.R.(2d) 209; 548 W.A.C. 209; 2012 MBCA 54, refd to. [para. 161].

Authors and Works Noticed:

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), p. 997 [para. 40].

Counsel:

N.M. Cutler, for the Crown;

J.R. Wolson, Q.C., and L.C. Robinson, for the accused.

These appeals were heard on October 12, 2011, before Scott, C.J.M., Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. In reasons written by Steel, J.A., the Court of Appeal delivered the following judgment, dated October 11, 2012.