R. v. Sommani (M.), 2007 BCCA 199

• Judge: Ryan, Mackenzie and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 03, 2006
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 199;(2007), 239 B.C.A.C. 126 (CA)

R. v. Sommani (M.) (2007), 239 B.C.A.C. 126 (CA);

    396 W.A.C. 126

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. AP.014

Regina (respondent) v. Mahmood Sommani (appellant)

(CA033220; 2007 BCCA 199)

Indexed As: R. v. Sommani (M.)

British Columbia Court of Appeal

Ryan, Mackenzie and Lowry, JJ.A.

March 30, 2007.

Summary:

An accused was convicted of forgery, possession of counterfeit marks, possession of materials to be used to commit forgery and possession of two forged identification cards (see [2005] B.C.T.C. 597). The accused appealed.

The British Columbia Court of Appeal, Ryan, J.A., dissenting in part, dismissed the appeal.

Criminal Law - Topic 1963

Offences against property - Forgery - Elements of offence - An accused charged with, inter alia, forgery, asserted that the documents produced by him were novelty identification, not false documents - The accused pointed to the cautions, conditions of sale and disclaimers and the fact that the documents were advertised as novelty items - The trial judge rejected the assertions and convicted the accused - The documents appeared to be genuine documents issued by official persons or institutions - The use of the term "novelty" disguised the underlying message that the documents could easily pass as authentic - The disclaimers and cautions against illegal use were unsatisfactory - A disclaimer on the back of a document could not alter what the document purported to be on the front - The blanket indemnities were an attempt to be absolved of liability - Also, the disclaimers and cautions evidenced anticipation of illegal use - The Crown did not have to prove that there was an existing authentic document and that the accused's document closely resembled it - The existence of an authentic counterpart was not a requirement - The issue was whether the documents falsely purported to be genuine documents issued by an official authority - The fact that the undercover officers supplied false personal information was of no consequence - If the officers had provided their actual information, the documents would still have been "false" by virtue of their official appearance - The British Columbia Court of Appeal affirmed the decision - It could not be said that the judge erred in holding that the accused had the requisite knowledge - See paragraphs 29 to 39.

Criminal Law - Topic 1963

Offences against property - Forgery - Elements of offence - An accused appealed, inter alia, his conviction for forgery (Criminal Code, s. 366) - The accused asserted, inter alia, that the trial judge erred in finding that he had the required intent; as advertised, the identification documents in question were intended solely for novelty purposes; and that the intent requirement in s. 366 was unconstitutionally vague - The accused pointed to the disclaimers on the back of the documents, cautions and conditions of sale to negate the intent to deceive - The British Columbia Court of Appeal held that it was open to the trial judge to infer that the accused had the requisite intent notwithstanding the cautions, conditions of sale and disclaimers - The was no basis for finding that s. 366 was unconstitutionally vague or that it captured harmless error or simple negligence - The finding that the accused had the requisite intent did not cast the net too widely - Further, there was a substantial body of evidence before the trial judge on intent, including the documents' authentic appearance; the fact that they were more expensive than their genuine counterparts; disclaimers that contemplated illegal use; and advice that the accused gave to an undercover officer - The fundamental purpose of the accused's documents was to mislead people - The accused could not be heard to say that the evidence did not establish that he intended people to be induced by his documents to do what they otherwise would not do - See paragraphs 40 to 49.

Criminal Law - Topic 1963

Offences against property - Forgery - Elements of offence - An accused appealed, inter alia, his conviction for forgery, asserting that the trial judge applied an incorrect burden of proof, i.e., that the accused "could not have reasonably thought" that the identification documents that he made would be used for any lawful purpose - The British Columbia Court of Appeal rejected the assertion - The trial judge clearly articulated the applicable burden of proof - In deciding whether the Crown had established the requisite mens rea, it was open to the judge to evaluate the objective likelihood of the proposed explanations being true and then apply that evaluation in deciding whether the Crown had established the necessary subjective intent beyond a reasonable doubt - See paragraphs 50 to 53.

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - [See first and second Criminal Law - Topic 1963 ].

Criminal Law - Topic 1974

Offences against property - Forgery - Possession of forgery equipment - An accused was convicted of, inter alia, possession of counterfeit marks and possession of materials to be used to commit forgery - The offences related to the making of false identification documents - The accused appealed, asserting that the judge erred in finding that the materials in his possession constituted counterfeit marks - The British Columbia Court of Appeal rejected the assertion - If, as the accused asserted, the trial judge relied exclusively on a coats of arms, he was entitled to do so - The accused placed undue emphasis on evidence to the effect that the coat of arms used by the business on what purported to be official British Columbia documents differed in general design from the British Columbia Coat of Arms - A poor counterfeit was still a counterfeit - The critical question was whether the counterfeit marks falsely purported to be genuine official marks - Similarity to the genuine marks might provide evidence on the issue but was not determinative - The evidence established that the coat of arms used resembled the British Columbia Coat of Arms in form - See paragraphs 63 to 67.

Criminal Law - Topic 1974

Offences against property - Forgery - Possession of forgery equipment - An accused was convicted of, inter alia, possession of materials to be used to commit forgery (Criminal Code, s. 369(b)) - The offences related to the making of false identification documents - The accused appealed, asserting that trial judge erred in finding that he possessed materials "adapted" to commit forgery within the meaning of s. 369(b) - The accused asserted that there was no evidence that the materials were either adapted from the their original form or suitable in their current form to be used to commit forgery - Further, there was no evidence that the materials were intended to be used to commit forgery - The British Columbia Court of Appeal rejected the assertions - This ground of appeal hinged on whether the identification documents produced for undercover police officers constituted forgeries - If so, the materials, were "adapted and intended to be used to commit forgery" - Given that the court upheld the finding that the documents were forgeries, the appeal could be disposed of accordingly - It was inconsequential whether the materials were commonplace - The trial judge had only to direct his mind to the materials' intended use and suitability for committing forgeries - See paragraphs 68 to 71.

Criminal Law - Topic 1984

Offences against property - Possession or laundering of proceeds of crime - Evidence and proof - An accused appealed, inter alia, his conviction for possession of forged airline identification cards (Criminal Code, s. 354(1)(a)), asserting that the Crown failed to adduce evidence to demonstrate that the cards were the product of an indictable offence, i.e., forgery - The accused asserted that the cards were novelty items and there was no evidence to infer that their creator had the requisite subjective intent to commit a forgery - The British Columbia Court of Appeal rejected the assertions - There was no basis on which it could be said that the card relied on by the trial judge to convict the accused was not a false document - The card purported to be made by an entity that did not make it or authorize it to be made - The court rejected the accused's assertion that the judge reversed the onus of proof to require the accused to advance a plausible lawful use - The trial judge merely observed that the accused had not explained his possession of the card - If the Crown had fallen short of proving guilt, the failure to present a plausible explanation could not have been used to bolster the Crown's case - The overall circumstances and the judge's finding that the accused was in the business of making documents, intending that they be used or acted upon as genuine to someone's prejudice, constituted sufficient basis to afford deference to the judge's conclusions - See paragraphs 54 to 62.

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at a preliminary inquiry - An accused appealed his convictions for forgery related offences, asserting that the trial judge improperly relied on evidence from the preliminary inquiry evidence of two police officers - The officers' evidence was not adduced by means of the transcript of the preliminary inquiry being marked as an exhibit at trial - Both officers testified at trial - The British Columbia Court of Appeal stated if the judge relied on the evidence to convict the accused, he committed an error of law - However, the court applied the curative provision and dismissed the ground of appeal - There was no basis to speculate that the whole of the officers' testimony at the preliminary inquiry was employed by the judge to assess guilt - The evidence against the accused was so overwhelming that a retrial would inevitably lead to conviction - There was minimal, if any, relationship between the impugned details and the core issues - The details were so peripheral that the judge's findings on them could not possibly have affected the trial's outcome - No substantial wrong or miscarriage of justice occurred - See paragraphs 72 to 80.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See third Criminal Law - Topic 1963 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See third Criminal Law - Topic 1963 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 3587 ].

Cases Noticed:

R. v. Mitrevski, [2004] O.J. No. 4940 (C.J.), affd. [2006] O.J. No. 260 (Sup. Ct.), refd to. [para. 37].

R. v. Wightman (J.M.) (2003), 347 A.R. 153; 2003 ABPC 202, refd to. [para. 43].

R. v. Sebo (1988), 87 A.R. 141; 42 C.C.C.(3d) 536 (C.A.), refd to. [para. 43].

R. v. Ruscoe-Bray (S.), [2001] O.T.C. Uned. 269 (Sup. Ct.), refd to. [para. 43].

R. v. Angrignon, [1996] O.J. No. 1344 (Gen. Div.), refd to. [para. 44].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 51].

R. v. Magno (J.) et al. (2006), 212 O.A.C. 16 (C.A.), refd to. [para. 52].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 59].

R. v. To (W.H.) (1992), 16 B.C.A.C. 223; 28 W.A.C. 223 (C.A.), refd to. [para. 59].

R. v. Mac (M.K.), [2002] 1 S.C.R. 856; 287 N.R. 75; 159 O.A.C. 33, refd to. [para. 69].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 76].

R. v. Arradi (Z.), [2003] 1 S.C.R. 280; 302 N.R. 367, refd to. [para. 77].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 77].

R. v. T.M.E. (2005), 215 B.C.A.C. 100; 355 W.A.C. 100; 199 C.C.C.(3d) 51; 2005 BCCA 388, refd to. [para. 77].

R. v. Bishop (C.S.) et al. (2006), 222 B.C.A.C. 295; 368 W.A.C. 295; 2006 BCCA 101, refd to. [para. 77].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1, refd to. [para. 77].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 78].

R. v. Maroney, [1975] 2 S.C.R. 306; 3 N.R. 209, refd to. [para. 112].

R. v. Hayes (1985), 10 O.A.C. 81; 20 C.C.C.(3d) 385 (C.A.), refd to. [para. 112].

Counsel:

R.R. Hira, Q.C., and A. Leoni, for the appellant;

S.D. Cooke and T.A. Shaw, for the Crown, respondent.

This appeal was heard at Vancouver, British Columbia, on November 3, 2006, by Ryan, Mackenzie and Lowry, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on March 30, 2007, with the following opinions:

Lowry, J.A. (Mackenzie, J.A., concurring) - see paragraphs 1 to 81;

Ryan, J.A., dissenting in part - see paragraphs 82 to 114.