R. v. Borenstein (D.S.), (1995) 189 A.R. 325 (ProvCt)

• Judge: Daniel, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 19, 1995
• Citations: (1995), 189 A.R. 325 (ProvCt)

R. v. Borenstein (D.S.) (1995), 189 A.R. 325 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. David Samuel Borenstein

(No. 50443704P1)

Indexed As: R. v. Borenstein (D.S.)

Alberta Provincial Court

Daniel, P.C.J.

December 19, 1995.

Summary:

The accused was charged with four counts of driving while disqualified, four counts of obstructing a peace officer and four counts of, knowing that an Alberta Driver's Licence was forged, unlawfully using, dealing with or acting upon it as if it were genuine. He was also charged with one count of unlaw­fully making a false document (an Alberta Driver's Licence) knowing it to be false, with intent that the document should be used or acted upon as genuine to the prejudice of Registries Plus, thereby committing forgery.

The Alberta Provincial Court found the accused guilty of all of the charges except for the charge of making a false document and thereby committing forgery.

Criminal Law - Topic 434

Offences against the administration of law and justice - Disobedience and obstruction - Obstruction and resistance of peace officer - In the execution of his duty - The Alberta Provincial Court found that the accused, by tendering an invalid Alberta driver's licence and representing it to be valid when it was not, obstructed the police in the execution of their duty - See paragraphs 49 to 53.

Criminal Law - Topic 1388

Motor vehicles - Driving while disqual­ified - Evidence - The accused was charged with four counts of driving while disqualified (Criminal Code, s. 259(4)) - A three year driving prohibition had previ­ously been imposed in Ontario - The accused argued that as he did not sign the Acknowledgment of the driving prohibition imposed in Ontario, there was no evidence that s. 260(1) of the Code was complied with and therefore, the order disqualifying the accused was not valid - The accused had been present when three year prohib­ition was imposed and had acknowledged when stopped by the police that he knew he was prohibited from driving - The Alberta Provincial Court convicted the accused - The accused's knowledge and understanding of the three year prohibition were established by direct evidence - In the absence of evidence to the contrary, the presumption of regularity operated and the requirements of s. 260(1) and 259(4) were proven - See paragraphs 23 to 48.

Criminal Law - Topic 1968

Offences against property - Forgery - Using a forged document - The accused was charged that on four separate dates he did, knowing that an Alberta driver's licence was forged, unlawfully use, deal or act upon the licence as if it were genuine (Criminal Code, s. 368(1)) - The applica­tion filled out by the accused to obtain the licence contained false information and he tendered false documents to secure the issuance of the licence - The Alberta Provincial Court found that the driver's licence was a forged and false document and convicted the accused - See para­graphs 54 to 57.

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - The accused was charged with making a false document (an Alberta driver's licence), knowing it to be false, with intent that the licence should be used or acted upon as genuine, to the prejudice of Registries Plus, thereby com­mitting forgery (Criminal Code, s. 367(1)) - The accused had applied for the licence at Registries Plus - He supplied false information on the application form - He also produced an Ontario driver's licence when he knew that a three year driving prohibition had been imposed on him in that province - The Alberta Provincial Court held that the charge had not been proven beyond a reasonable doubt, where there was no evidence that Registries Plus was prejudiced by the issuance of the licence - See paragraphs 58 to 61.

Evidence - Topic 2501

Special modes of proof - Presumptions - Regularity - Documents - [See Criminal Law - Topic 1388 ].

Evidence - Topic 2504

Special modes of proof - Presumptions - Regularity - Notice or knowledge - [See Criminal Law - Topic 1388 ].

Cases Noticed:

R. v. Lai (P.) (1995), 172 A.R. 235 (Q.B.), refd to. [para. 28].

Johnston v. British Columbia (Superin­tendent of Motor Vehicles) (1987), 46 M.V.R. 59 (B.C.S.C.), refd to. [para. 28].

Prince Edward Island (Provincial Secre­tary) v. Egan (1941), 76 C.C.C. 227 (S.C.C.), refd to. [para. 28].

R. v. Docherty, [1989] 2 S.C.R. 941; 101 N.R. 161; 68 Nfld. & P.E.I.R. 315; 244 A.P.R. 315; 17 M.V.R.(2d) 161, refd to. [para. 32].

R. v. Sterner, [1982] 1 S.C.R. 173; 40 N.R. 423; 14 Sask.R. 79; 64 C.C.C.(2d) 160, refd to. [para. 32].

R. v. Boylan (1979), 3 Sask.R. 157; 8 C.R.(3d) 36 (C.A.), refd to. [para. 32].

R. v. Bara (1981), 58 C.C.C.(2d) 243 (B.C.C.A.), refd to. [para. 32].

Piche v. R. (1976), 31 C.C.C.(2d) 150 (Sask. Q.B.), refd to. [para. 32].

R. v. Kean (1989), 80 Nfld. & P.E.I.R. 159; 249 A.P.R. 159; 22 M.V.R.(2d) 279 (Nfld. Prov. Ct.), consd. [para. 34].

R. v. Hurst (1968), 65 W.W.R.(N.S.) 694 (Alta. T.D.), refd to. [para. 34].

R. v. Heisler (1966), 49 C.R. 297 (N.S.S.C.), consd. [para. 36].

R. v. Thimsen (1993), 44 M.V.R.(2d) 295 (B.C.S.C.), refd to. [para. 36].

R. v. Scott (1980), 26 A.R. 181; 56 C.C.C.(2d) 111 (C.A.), refd to. [para. 36].

R. v. Kapoor (1989), 19 M.V.R.(2d) 219 (Ont. H.C.), consd. [para. 38].

R. v. Leguilloux (1979), 11 C.R.(3d) 289 (B.C.C.A.), consd. [para. 39].

R. v. Ure (1976), 6 A.R. 193 (T.D.), refd to. [para. 51].

R. v. B. (1985), 64 A.R. 151; 41 Alta. L.R.(2d) 341 (Prov. Ct.), refd to. [para. 51].

R. v. Blackstar, [1981] 14 W.C.B. 482 (B.C.C.A.), refd to. [para. 51].

R. v. McKerness (1983), 4 C.C.C.(3d) 233 (Que. Gen. Sess.), refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 260(1) [para. 24].

Authors and Works Noticed:

Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law on Evidence (3rd Ed. 1940), vol. IX, p. 488 [para. 40].

Counsel:

L. Stein, for the Crown;

T. Foster, for the accused.

This case was heard at Calgary, Alberta, before Daniel, P.C.J., of the Alberta Provin­cial Court, who delivered the following decision on December 19, 1995.