



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cattral, 2015 ONCA 315

DATE: 20150507

DOCKET:
C57957

Strathy C.J.O., Doherty and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert David Cattral

Appellant

Robert B. Carew, for the appellant

Melissa Adams, for the respondent

Heard: April 13, 2015

On appeal from convictions entered on December 18, 2012, by
    Justice Diane M. Lahaie of the Ontario Court of Justice, with reasons reported
    at [2012] O.J. No. 6650.

Doherty J.A.:

[1]

This is a conviction appeal. The appellant also submits that if he is
    successful in quashing any of the convictions, his sentence should be reduced
    to reflect that success.

[2]

The appellant faced 22 charges. The trial judge convicted on 11. Eight
    of the convictions involved allegations that the appellant had breached the
    terms of the bail on which he had been released pending his appeal from
    convictions registered in an earlier proceeding. I will refer to these as the
    breach charges. The other three convictions involved allegations that the
    appellant was in possession of materials or devices knowing that they had been
    used, were adapted to be used, or intended to be used in forging or falsifying
    credit cards: see
Criminal Code
,
    R.S.C. 1985, c. C-46,
s. 342.01(1)(b). I will refer to these as the
    forgery-related charges.

[3]

The appellant received a sentence of 18 months on each of the breach
    charges. The sentences were concurrent to each other and concurrent to the sentences
    imposed on the forgery-related charges. The trial judge imposed a sentence of
    3½ years concurrent on each of those charges. The total sentence of 3½ years was
    made consecutive to the sentences being served by the appellant as a result of
    his convictions in the earlier proceeding.
[1]


[4]

On this appeal, counsel submits that all but one of the convictions are unreasonable
    and unsupported by the evidence. Counsel also submits that the trial judge
    erred in holding that the appellants involvement in the criminal activity that
    had led to his earlier convictions was evidence of his knowledge or intent at
    the time he was found in possession of the devices and materials that are the
    subject of the three forgery-related charges. Counsel argues that the trial judge
    improperly used the evidence of the appellants prior discreditable conduct to
    conclude that he engaged in the conduct alleged in the forgery-related charges.

[5]

For the following reasons, I would dismiss the appeal, except as it
    relates to count 4. I would allow the appeal on that charge, quash the
    conviction, and enter an acquittal. I would not vary the totality of the
    sentences imposed on the appellant.

The Breach Charges

[6]

On six of the eight breach charges (counts 7, 10, 11, 13, 15 and 17),
    the appellants liability turned on whether he was in possession of the devices
    or materials referred to in each count. The appellants bail prohibited
    possession of those devices and materials. Counsel for the appellant submits
    that the convictions on these counts, with the exception of count 17, are
    unreasonable as on the evidence the trial judge could not properly conclude
    that the appellant was in possession of the devices and materials referred to
    in each count. The appellant does not challenge his conviction on count 17.

[7]

Count 2 alleged that the appellant had breached his bail by continuing
    to operate, directly or indirectly, the business of Canadian Barcode. The
    appellant had used Canadian Barcode to operate the sophisticated, full-service
    credit card forgery business that had led to his convictions in the prior
    proceeding. His bail terms prohibited the appellant from operating that
    business directly or indirectly. The Crown alleged that the appellant had
    continued his operation of the Canadian Barcode business through a company called
    Buy-Clik Canada. The trial judge accepted this submission and convicted the
    appellant on count 2.

[8]

The appellant argues that the trial judges finding that the business of
    Buy-Clik Canada was a continuation of the Canadian Barcode business was
    unreasonable, as was the finding that the appellant was in charge of the
    Buy-Clik Canada operation. Counsel for the appellant submits that on the
    evidence the appellant was only an employee at Buy-Clik Canada.

[9]

Count 1, the other breach charge, alleged a failure to keep the peace. The
    appellant accepts that if he is convicted on any of the other charges, a
    conviction on count 1 must follow.

The Forgery-Related Charges

[10]

Counts
    3, 4 and 5 alleged possession of materials or devices that the appellant knew had
    been used, adapted for use, or were intended for use in forging or falsifying
    credit cards. The Crown had to prove, first, that the appellant was in
    possession of the devices or materials and, second, that the appellant had the
    state of mind required by the offence creating provision.

[11]

The
    possession issue on the forgery-related counts was the same as the possession issue
    on the breach counts. The Crown alleged that the appellant was in possession of
    the devices and materials referred to in counts 3, 4 and 5 because they were found
    in various rooms at the Buy-Clik Canada business premises which, on the Crowns
    theory, was controlled by the appellant.

[12]

On
    the state of mind issue, the Crown relied on the evidence of the nature of the
    materials and devices, statements made by the appellant to the police, parts of
    the appellants testimony, an expert report prepared for the Crown and admitted
    on consent, and the appellants extensive involvement in the operation of
    Canadian Barcode. The Crown contended that the appellant had continued the
    Canadian Barcode business using Buy-Clik Canada and that the devices and
    materials found on the Buy-Clik Canada premises were intended to be used in
    forging or falsifying of credit cards just as similar devices and materials
    found on the Canadian Barcode premises had been used for those purposes.

[13]

The
    trial judge found that evidence of the appellants conduct in the operation of the
    Canadian Barcode business was admissible to show that he knew that the materials
    and devices found on the Buy-Clik Canada business premises had been used,
    adapted for use, or were intended for use in forging or falsifying credit
    cards. The trial judge did indicate, however, that this evidence did not play a
    central role in her findings on counts 3, 4 and 5. The appellant submits that it
    should have played no role.

Was the Trial Judges Finding that the Appellant was in
    Possession of the Material Found on the Buy-Clik Canada Business Premises
    Unreasonable?

[14]

The
    task of considering the reasonableness of the trial judges findings is made
    easier by her detailed review of the evidence. She examined the entirety of the
    evidence at some length, paying particular attention to the appellants
    evidence. The trial judge rejected the exculpatory parts of his evidence and
    gave cogent reasons for doing so.

[15]

The
    trial judge found that the Buy-Clik Canada business, nominally operated by the
    appellants mother, was in reality a continuation of the business that the
    appellant had operated through Canadian Barcode. The evidence summarized by the
    trial judge offered firm support for that finding. The evidence included the
    following:

·

Canadian Barcodes inventory was taken over by Buy-Clik Canada;

·

the Canadian Barcode website automatically redirected clients to
    Buy-Clik Canada; and

·

Buy-Clik Canada sold some of the same material and equipment that
    Canadian Barcode had sold.

[16]

Counsel
    for the appellant pointed to certain differences in the operations of the two
    corporate entities. Buy-Clik Canada does not appear to have had the same level
    of activity as Canadian Barcode, or to have offered all of the services offered
    by Canadian Barcode. Those differences do not, however, detract from the
    essential similarities between the two operations or render unreasonable the
    trial judges finding that the business of Buy-Clik Canada was a continuation
    of the Canadian Barcode business.

[17]

The
    contention, based primarily on the appellants evidence, that his mother
    operated Buy-Clik Canada, is, to put it mildly, incredible and was rejected by
    the trial judge. The appellant was involved in the day-to-day operation of Buy-Clik
    Canada and had considerable expertise relevant to the operation of the business
    of Buy-Clik Canada. His mothers expertise lay in entirely different business
    ventures. The appellant had an office on the Buy-Clik Canada premises and full
    access to all parts of the premises and anything stored there. The trial judge
    reasonably concluded that the appellant, by virtue of his operation of Buy-Clik
    Canada, was in possession of the relevant materials and devices found on the
    Buy-Clik Canada business premises.

[18]

The
    trial judges findings that Buy-Clik Canada carried on the business of Canadian
    Barcode and that the appellant was in control of that business, were
    sufficient, taken together, to justify the further finding that the appellant
    was in possession of the devices and materials found on the Buy-Clik Canada
    business premises.

[19]

The
    convictions on the breach charges were reasonable.

Were the Convictions on the Forgery-Related Charges
    Unreasonable?

[20]

The
    trial judges finding that the appellant operated Buy-Clik Canada and was in
    possession of the devices and materials found at the Buy-Clik Canada business
    premises was sufficient to satisfy the possession element of the forgery
    charges in counts 3, 4 and 5. The appellant submits, however, that the evidence
    could not reasonably justify the finding that the appellant knew that the
    materials and devices referred to in counts 3, 4 and 5 had been used, were adapted
    for use, or intended for use in the forging or falsifying of credit cards.

[21]

Count
    3 alleged possession of plastic cards with magnetic stripes. Some 50,000
    cards were found on the Buy-Clik Canada business premise. The cards could
    clearly be used in the forging or falsifying of credit cards. Counsel for the
    appellant submits, however, that the Crown failed to prove that the appellant
    knew they were intended for that use.

[22]

The
    trial judge, in finding that the appellant had the necessary knowledge, relied
    not only on the nature of the material, but also on the central role played by
    the appellant in the Canadian Barcode criminal enterprise that had also
    involved the use of similar material to falsify and forge credit cards. The
    trial judge reasoned that the appellants activity in the Canadian Barcode
    operation was helpful in fixing him with knowledge as to the intended use of
    the plastic cards found on the Buy-Clik Canada business premises.

[23]

I
    think the trial judge correctly held that she could infer from the appellants
    operation of Canadian Barcode that he knew of the intended use of the plastic
    cards found on the Buy-Clik Canada business premises. This inference does not engage
    in any form of improper propensity reasoning based on prior misconduct, but
    rather fixes the appellant with knowledge of the intended use of the cards
    found on the Buy-Clik Canada business premises by reference to the use to which
    the appellant put the same material when he was running the Canadian Barcode
    operation. Having regard to the trial judges finding that Buy-Clik Canada was
    simply a continuation of Canadian Barcode, the inference becomes compelling. I would
    not interfere with the conviction on count 3.

[24]

The
    analysis on count 3 is equally applicable to count 5 which alleged possession
    of devices called card readers, knowing they had been used, adapted for use, or
    were intended for use in forging or falsifying credit cards. I would dismiss
    the appeal on this count.

[25]

The
    appellants argument on count 4 is somewhat different. Counsel submits that
    there was no evidence that the card printers, that were the subject of count 4,
    had been used or could be adapted for use in the forging or falsifying of
    credit cards. Counsel contends that, absent evidence that the devices were used
    in the forging or falsifying of credit cards or could be adapted for that
    purpose, it was unreasonable to infer that the appellant knew that the card
    printers were intended to be used in the forgery or falsification of credit
    cards.

[26]

As
    I understand the evidence, the card printers could be used in forging or falsifying
    credit cards if those card printers had some form of encoding capability. The report
    filed by the Crown expert indicated that when the expert examined the card
    printers seized from the Buy-Clik Canada premises, those printers did not have
    encoding capabilities. The report went on to state that there was a possibility
    that the printers could be adapted for encoding purposes, but the expert could
    not say whether the necessary adaptation would have to have been made at the
    time the printer was manufactured or could be made at some later time. Information
    provided by the manufacturer and seized with the card printers referred to
    encoding options, but provided no further explanation or details.

[27]

The
    appellant was examined and cross-examined at some length. He was not asked
    about the potential use of the card printers, or whether encoding options could
    be installed on the devices found on the Buy-Clik Canada business premises.

[28]

In
    her reasons, the trial judge did not distinguish among the devices or materials
    referred to in counts 3, 4 and 5. She did not give separate consideration to
    the ability to use or adapt the card printers for use in the forgery or
    falsifying of credit cards. From my reading of the trial record, it does not
    appear that the precise argument made on appeal was made before the trial
    judge.

[29]

In
    her reasons, the trial judge twice referred to the appellant acknowledging that
    the devices seized are suitable for use in credit card forgery (paras. 12,
    25). In oral argument, counsel for the appellant submitted that no such
    concession was made insofar as the card printers were concerned. I accept that representation.

[30]

The
    Crown correctly observes that the crime created by s. 342.01(1) does not
    require that the Crown prove that the card printers could actually be used or
    adapted for use in the forgery or falsification of credit cards. Liability
    under the section is established if the Crown proves either that the appellant
    intended to use the devices to forge or falsify credit cards, or knew that the
    persons to whom he sold the devices intended to use them for that purpose, even
    if the devices did not have that capability.

[31]

This
    argument is difficult to resolve in that the evidence at trial was not directed
    squarely at the issue now raised. The nature of the appellants prior business activities
    with Canadian Barcode, his extraordinary computer-related expertise, and the
    potential for installing card encoding capabilities into the card printers, lend
    credence to the claim that the appellant had those devices, knowing that they
    were intended for use in the forgery or falsification of credit cards.

[32]

In
    the end, however, I do not think the conviction on count 4 can stand. There is
    no evidence that the card printers, as seized, could be changed to create
    encoding capability. The Crown expert could not say whether the devices could
    be altered in some way to give them encoding capability. His report did,
    however, clearly indicate that the printers, as found, did not have that
    capability. Nor did the experts report shed any light on the encoding
    options referred to in the manufacturers material.

[33]

The
    Crown did not allege that the operation of Buy-Clik Canada was devoted
    exclusively to criminal activity or to the falsification and forgery of credit
    cards. Like Canadian Barcode, Buy-Clik Canada had some legitimate business. Presumably,
    some of the materials and devices found on the Buy-Clik Canada premises were
    relevant to the legitimate aspects of its business. Absent evidence that the
    card printers as found could be altered to give them encoding capabilities, I
    think it was unreasonable to infer that the appellant knew that the card
    printers were intended for use in the forgery or falsification of credit cards.
    I would quash the conviction on count 4 and enter an acquittal.

Should the Sentence be Varied?

[34]

The
    trial judge imposed concurrent 3½ year sentences on each of the three forgery-related
    charges. The quashing of the conviction on count 4 has no impact on the total
    sentence imposed by the trial judge. Counsel for the appellant submits that the
    total sentence should be adjusted downward to reflect the conviction on count 4.
    He argues that if a total sentence of 3½ years was appropriate for three
    forgery-related convictions, a sentence of something less than 3½ years must be
    appropriate for two forgery-related convictions.

[35]

The
    logic of the appellants submission is undeniable and, in many cases, would
    carry the day. However, I would not give effect to the argument here.

[36]

The
    trial judge, in her sentencing reasons, described the appellants business
    operation as a sophisticated, elaborate operation, involving extensive
    planning and deliberation. That assessment is unaffected by the quashing of one
    of the convictions.

[37]

The
    trial judge referred to the appellants extensive criminal record ranging over
    20 years and including many crimes of dishonesty and disobedience of court
    orders. The trial judge also emphasized that the appellant committed these
    offences while on bail pending appeal from convictions for very similar crimes.
    The trial judges observations, which show the obvious need for specific
    deterrence, are in no way mitigated by the quashing of the conviction on count
    4.

[38]

The
    heart of the trial judges reasons for sentence is found in this passage:

On the issue of specific deterrence, Mr. Cattral, the court
    found that you are moved by an overwhelming drive to find a way to outsmart the
    credit card industry, as you testified, and the challenges to be overcome. You
    become animated and excited by your accomplishments, as you describe them at
    your trial. Clearly,
the pleasure you derive from your involvement in this
    activity outweighs the pain you feel as everything around you is taken away,
    including your liberty. In my view, you will not be deterred by the sentence
    imposed by this court or any other court. Any changes in your behaviour will
    have to come from within.
You will have to come to a realization on your
    own, perhaps with the assistance of counselling that you invite, borne of a
    willingness to change, that your life could be fulfilling when you contribute
    to your personal balance sheet, to the happiness of your family, and when you
    contribute to society at large in a pro-social fashion. That change can come
    only from you. [Emphasis added.]

[39]

The
    appellant has apparently decided to dedicate himself to a life of dishonesty
    and crime. At present, the appellants removal from the community seems the
    only way to protect the community from the appellant. The need for that
    protection drove the sentencing process at trial and should continue to do so
    even though one of the convictions will be quashed. The global sentence of 3 ½
    years remains fit.

[40]

I
    would not interfere with the sentence on the counts on which the convictions
    have been upheld. The totality of the sentences remains the same.

Conclusion

[41]

I
    would quash the conviction on count 4 and enter an acquittal. I would dismiss
    the appeals from the convictions on the other charges. I would not vary the
    sentences imposed on those charges.

Released:  GRS  MAY 07 2015

Doherty J.A.

I agree G.R. Strathy
    C.J.O.

I agree Eileen E.
    Gillese J.A.





[1]

The appeals from those convictions and sentences
    were dismissed on April 17, 2015: see
R. v. Beauchamp
, 2015 ONCA 260.


