R. v. Gardner (K.), (2014) 348 Nfld. & P.E.I.R. 267 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: March 12, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 348 Nfld. & P.E.I.R. 267 (NLPC)

R. v. Gardner (K.) (2014), 348 Nfld. & P.E.I.R. 267 (NLPC);

    1082 A.P.R. 267

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. MR.024

Her Majesty the Queen v. Kevin Gardner

(2014 PCNL 1313A00903)

Indexed As: R. v. Gardner (K.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

March 19, 2014.

Summary:

A young woman (Hussey) asked the accused (Gardner) to lie so that she that she could cash a cheque at his bank. Gardner, believing that he was helping someone in need of assistance said yes. The bank cashed the cheque, but it was subsequently determined that the cheque did not belong to Hussey. Hussey had told Gardner that it did, but she had lied. Gardner had co-signed the cheque based upon Hussey's false representation. Gardner was charged with uttering a forged document and fraud.

The Newfoundland and Labrador Provincial Court acquitted Gardner of both offences, holding that the Crown had failed to prove beyond a reasonable doubt that he possessed the necessary criminal intent to commit either offence.

Criminal Law - Topic 1963

Offences against property - Forgery - Elements of offence - The Newfoundland and Labrador Provincial Court discussed the elements of the offence of using, dealing or acting upon a forged document - The court stated that, in summary, "The elements of uttering a forged document, pursuant to section 368(1)(a) of the Criminal Code, require proof that the accused: (1) used, dealt with or acted upon a document as if it were genuine; (2) knowing or believing that the document was forged." - See paragraphs 33 to 41.

Criminal Law - Topic 1972

Offences against property - Forgery - Uttering a forged document - The Newfoundland and Labrador Provincial Court found that Gardner went to the Bank with Hussey and pretended that she was his niece to enable her to cash a cheque - Gardner had co-signed the cheque - The Bank cashed the cheque, providing Hussey with money - The court held that the accused was not guilty of uttering a forged document - Proof of the offence of uttering a forged document required proof that Gardner knew or believed that the cheque was forged and that he dealt with or acted upon the cheque as if it were genuine, knowing that it was not - Once Hussey falsely endorsed the cheque, it became a forged document - However, Gardner did not know this - He believed that the cheque belonged to Hussey and that the signature she placed upon it was that of the owner of the cheque - Thus, the Crown had failed to prove that Gardner had the necessary mens rea for the offence - The court stated that the essence of its reasoning was that Gardner acted stupidly, but not criminally - See paragraphs 42 to 44 and 49 to 51.

Criminal Law - Topic 2003

Fraudulent transactions - Fraud - Intent to defraud - The Newfoundland and Labrador Provincial Court found that Gardner went to the Bank with Hussey and pretended that she was his niece to enable her to cash a cheque - Gardner had co-signed the cheque - The Bank cashed the cheque, providing Hussey with money - Fraud required proof of a dishonest act; deprivation (or a risk thereof); and an intent to deprive (or place at risk of deprivation) - Pretending that Hussey was his niece for the purpose of persuading the bank to cash a cheque for a person without identification was a dishonest act and once the Bank cashed the cheque it was deprived of its monies (the fact that the Bank subsequently recouped its loss from Gardner's account did not alter the deprivation which occurred) - Thus, the first two elements of fraud were established - However, the Crown had not proved that Gardner intended to deprive the Bank - The mens rea for the offence of fraud was subjective in nature - Gardner did not know Hussey and he believed that the cheque belonged to her - Gardner was trying to help her by lying to the bank, but did not intend to deprive the bank or place its monies at risk of deprivation (though he did both) - Gardner believed that Hussey was cashing her cheque and thus, the transaction was a lawful and legitimate one - Gardner honestly (though somewhat naively) believed that he was facilitating (through a lie) a legitimate financial transaction which would not deprive the Bank of its monies or place it at risk of being deprived - See paragraphs 42 to 48.

Criminal Law - Topic 2005

Fraudulent transactions - Fraud - Elements of - The Newfoundland and Labrador Provincial Court discussed the actus reus of fraud, which included deceit, falsehood or "other fraudulent means" - See paragraphs 25 to 27.

Criminal Law - Topic 2005

Fraudulent transactions - Fraud - Elements of - The Newfoundland and Labrador Provincial Court stated that "... the offence of fraud consists of: (1) a dishonest act (i.e., 'deceit, falsehood or other fraudulent means'); (2) deprivation or a risk of deprivation; and (3) an intent to deprive or place the victim at risk of deprivation ..." - See paragraph 32.

Criminal Law - Topic 2010

Fraudulent transactions - Fraud - Other fraudulent means - [See first Criminal Law - Topic 2005 ].

Criminal Law - Topic 5343

Evidence and witnesses - Confessions and voluntary statements - Exculpatory statements by accused - The Newfoundland and Labrador Provincial Court stated that "When an accused person testifies, her or his testimony must be assessed in compliance with the criminal standard of proof and the Supreme Court of Canada's judgment in R. v. D.W., [1991] 1 S.C.R. 742. What about an accused person's statement entered by the Crown? ... The applicable principles can be summarized as follows: (1) as a general rule, an accused person's out of court statement cannot be led by the accused as evidence (subject to certain exceptions ...); (2) if the Crown leads as evidence an out of court statement made by the accused, which has exculpatory and inculpatory portions, both portions have substantive weight (i.e. evidence for and against the accused); (3) the criminal standard of proof does not apply to individual items of evidence ... and thus evidence of an out of court statement made by an accused person must be considered as forming part of the overall case. In other words, the Crown does not have to prove beyond a reasonable doubt that such a statement is true for its inculpatory portion (if any) to be considered by the trial judge. An out of court statement made by an accused person is a 'piece of evidence, to be taken into account along with and in the same way as the rest of the evidence' ...; ... (4) a trial judge may accept as true all or part of an out of court statement made by the accused ...; (5) a different standard of scrutiny is not to be applied to exculpatory portions of an out of court statement made by the accused as compared to those that are inculpatory, i.e., it is an error to hold as a general principle that the inculpatory portions are more likely to be true ...; and (6) if the accused's statement raises a reasonable doubt, an acquittal must ensue ..." - See paragraphs 14 to 19.

Criminal Law - Topic 5353.4

Evidence and witnesses - Confessions and voluntary statements - Statements both inculpatory and exculpatory - [See Criminal Law - Topic 5343 ].

Cases Noticed:

R. v. Prokofiew (E.) (2012), 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 11].

R. v. Phelan (D.B.) (2013), 337 Nfld. & P.E.I.R. 64; 1047 A.P.R. 64; 2013 NLCA 33, refd to. [para. 11].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 12].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 12].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 12].

R. v. Ahmed (O.), [2013] O.A.C. Uned. 381; 2013 ONCA 473, refd to. [para. 12].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 14].

R. v. Sunshine (D.C.) (2013), 335 B.C.A.C. 55; 573 W.A.C.; 297 C.C.C.(3d) 145; 2013 BCCA 102, refd to. [para. 15].

R. v. Rojas (M.A.), [2008] 3 S.C.R. 1; 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258, refd to. [para. 15].

R. v. Humphrey (K.) (2003), 169 O.A.C. 49 (C.A.), refd to. [para. 16].

R. v. Evans (A.W.) (2012), 321 B.C.A.C. 295; 547 W.A.C. 295 (C.A.), refd to. [para. 18].

R. v. Nkemka (D.), 2013 ONSC 2091, refd to. [para. 18].

R. v. Lavhey (Y.M.), [2013] Nfld. & P.E.I.R. Uned. 81 (N.L. Prov. Ct.), refd to. [para. 18].

R. v. Mayuran (S.), [2012] 2 S.C.R. 162; 431 N.R. 232; 284 C.C.C.(3d) 1; 2012 SCC 31, refd to. [para. 18].

R. v. M.C., 2012 QCCQ 14900, refd to. [para. 18].

R. v. S.T.O., [2011] A.R. Uned. 570 (Prov. Ct.), refd to. [para. 18].

R. v. Philip (J.S.) (2010), 477 A.R. 380; 483 W.A.C. 380 (C.A.), refd to. [para. 18].

R. v. Miller (1991), 50 O.A.C. 282; 5 O.R.(3d) 678; 68 C.C.C.(3d) 517 (C.A.), refd to. [para. 18].

R. v. Edgar (D.J.) (2010), 269 O.A.C. 171 (C.A.), refd to. [para. 19].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 19].

R. v. Yumnu (I.) et al. (2010), 269 O.A.C. 48 (C.A.), refd to. [para. 19].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 19, footnote 1].

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109; 196 C.C.C.(3d) 403 (C.A.), refd to. [para. 19].

R. v. Cluney (C.R.) (2009), 343 Sask.R. 289; 472 W.A.C. 289 (C.A.), refd to. [para. 19].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 25].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81, refd to. [para. 26].

R. v. Benson (M.) et al. (2012), 284 Man.R.(2d) 204; 555 W.A.C. 204; 2012 MBCA 94, refd to. [para. 27].

R. v. Lauer (J.M.) (2011), 306 Nfld. & P.E.I.R. 289; 951 A.P.R. 289 (P.E.I.C.A.), refd to. [para. 31].

R. v. Kwaidah (A.) (2010), 299 Nfld. & P.E.I.R. 47; 926 A.P.R. 47 (N.L.C.A.), refd to. [para. 32].

R. v. Warren (D.F.) (2010), 297 Nfld. & P.E.I.R. 7; 918 A.P.R. 7 (N.L.C.A.), refd to. [para. 32].

R. v. Wightman (J.M.) (2003), 347 A.R. 153 (Prov. Ct.), refd to. [para. 35].

R. v. J.J.V. (1994), 148 N.B.R.(2d) 258; 378 A.P.R. 258 (C.A.), refd to. [para. 36].

R. v. Jones (1970), 11 C.R.N.S. 219 (Ont. C.A.), refd to. [para. 36].

R. v. Elkin (1978), 42 C.C.C.(2d) 185 (B.C.C.A.), refd to. [para. 36].

R. v. Sebo (1988), 87 A.R. 141 (C.A.), refd to. [para. 38].

Counsel:

B. Duffy, for Her Majesty the Queen;

K. Gardner, on his own behalf.

This case was heard at Corner Brook, N.L., on March 12, 2014, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on March 19, 2014.