



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2021 ONCA 310

DATE: 20210512

DOCKET: C67990

Hoy, Hourigan and Zarnett J.J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Smith

Appellant

Christopher Smith, acting in person

Daniel A. Stein, acting as duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: May 4, 2021 by
    videoconference

On appeal from the conviction entered on
    December 4, 2019 by Justice Andrew J. Goodman of the Superior Court of Justice,
    sitting with a jury, and the sentence imposed on January 14, 2020.

REASONS FOR DECISION

[1]

As a result of a search by the police of a
    residence on Cannon Street in Hamilton, the appellant was charged with a number
    of offences: two counts of possessing, without lawful authority, identity
    documents that related to another person contrary to s. 56.1(1) of the
Criminal
    Code of Canada
, R.S.C., 1985, c. C-46; two counts of possessing, without
    lawful authority, a counterfeit mark contrary to s. 376(2)(b) of the
Code
;
    and one count of possessing cocaine contrary to s. 4(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.

[2]

The same items formed the basis of the identity
    document charges and the counterfeit mark charges  a drivers licence and
    Ontario health cards. They each bore the Ontario government trillium logo  the
    fact at the core of the allegation of a counterfeit mark. They each had a
    photograph of the appellant, but a different name and various dates of birth  the
    facts at the core of the allegation that they were identity documents that
    related to another person. They were each found in a box on the main floor of
    the Cannon Street premises.

[3]

The cocaine  approximately 4.5 grams  was found
    beneath clothing on the second floor of the Cannon Street premises.

[4]

The appellant was tried by a judge and jury. The
    central issue at trial was whether the identity cards and cocaine were in the
    possession of the appellant and whether he had knowledge of them. This issue
    largely turned on the appellants connections to the Cannon Street premises.

[5]

The trial judges charge to the jury explained
    that there were limited matters for them to consider. He instructed the jury to
    find that the drivers licence and health cards were identity documents that
    related to another person (as s. 56.1 requires), that the marks (the trillium
    logo) on them were counterfeit (as s. 376(2)(b) requires), and that there was
    no lawful authority for their possession (as both sections require). He also
    instructed the jury that there was no issue that the drug was cocaine.

[6]

After describing the essential elements of each
    count of each offence, the trial judge said:

Therefore, to help you in your analysis, the
    issues in this case for all of the charges related to Mr. Smith's alleged
    possession of the false identity cards in question, and/or the cocaine found in
    the residence. Therefore, the only questions or essential elements for all of
    the counts relates to your consideration of Mr. Smith's possession and his
    knowledge over the identity cards and/or the cocaine.

[7]

The trial judge then outlined for the jury the
    evidence from which an inference might or might not be drawn of possession and
    knowledge, instructing them that they needed to be satisfied that the essential
    elements were proven beyond a reasonable doubt for each count.

[8]

The jury convicted the appellant on all counts.

[9]

Given the conviction on the counterfeit mark
    charges, the trial judge entered a conditional stay of the convictions on the
    identity documents charges. He imposed a global sentence of four months
    incarceration after credit for pre-trial custody, allocating four months to the
    counterfeit mark charges and 90 days concurrent to the cocaine charge, to be
    followed by two years probation. He also made certain ancillary orders.

[10]

Duty counsel advanced six grounds of appeal on
    behalf of the appellant, which are discussed below. The other grounds in the
    Notice of Appeal were not pursued.

[11]

The first four grounds raised by duty counsel
    revolve around the interrelated contentions that the trial judge allowed
    inadmissible evidence to be led of suspected drug dealing at the Cannon Street
    premises and of the appellants involvement in it, that he failed to instruct the
    jury about the use of evidence across counts, and that he failed to instruct
    the jury not to engage in propensity reasoning. We decline to give effect to
    these arguments.

[12]

The appellant was represented by counsel at
    trial. No objection was made to the evidence now characterized as inadmissible.

[13]

The trial judge did not ignore his gatekeeping
    role. Rather, he exercised it in light of the theories and positions taken by
    the parties. The trial judge, on his own, limited the narrative evidence of a
    police officer about the suspected drug dealing that was the backdrop to the
    search of the premises, noting that the validity of the warrant was not
    challenged. It was also the trial judge who voiced a concern, and invited a
    defence objection that he gave effect to, when an officer offered opinion
    evidence about whether trafficking was taking place at the premises. Although
    the appellant now argues that a caution to the jury should have been given, the
    trial judges intervention would have made the lack of relevance of those lines
    of questioning clear to the jury. Moreover, no caution or limiting instruction
    to the jury was requested during trial. The evidence about drug dealing was not
    referenced in the judges charge, and a limiting instruction about it would
    have required a repetition of the evidence which may have been contrary to the
    appellants interests:
R. v. M.P.
, 2018 ONCA 608, 363 C.C.C. (3d) 61
    at para. 108.

[14]

Similarly, no request for a cross-count or
    propensity reasoning instruction was made, despite the evidence led by the Crown
    and counsels participation in a pre-charge conference. Nor was there any
    objection to the jury charge after its delivery.

[15]

While a cross-count or propensity instruction would
    have been appropriate, we do not view the failure to provide one in this case as
    a reversible error. In
R. v. Beausoleil
, 2011 ONCA 471, 277 C.C.C.
    (3d) 50, this court set out relevant considerations in determining whether such
    limiting instructions are required. These include the nature of the evidence,
    the issue to which the evidence is relevant, and the likelihood that an
    instruction would confuse the jury or draw attention to the discreditable
    conduct: at para. 20. The key question is whether the appellant was prejudiced
    by the absence of the instruction.

[16]

In our view, given the way the case was framed,
    the circumstances did not demand a cross-count instruction, nor was the
    appellant prejudiced by the absence of one. Importantly, the central evidence
    related to each count was the evidence that connected the appellant to the Cannon
    Street premises. This evidence was relevant to each count and was approached as
    such by both sides at trial. Although the jury was not told that guilt on one
    charge did not mean guilt on any other, the jury was told it needed to be
    satisfied on each count before convicting on that count.

[17]

A propensity reasoning instruction is given to
    address the risk that evidence of discreditable conduct (not forming the basis
    of the charge before the court) will be used by the jury to stigmatize the accused
    as a person of bad character and convict him on that basis, or in a manner that
    distracts them from the proper issues they are to consider. As noted, there was
    evidence that police suspicion of the appellant was the reason for surveillance
    of the Cannon Street premises, but that evidence was limited in scope including
    by rulings of the trial judge. The bulk of the evidence of the police officers
    dealt with what they observed during surveillance, what was found when the
    premises were searched, and the circumstances of the appellants arrest (away
    from the premises). These were relevant to the issues on the charges and were
    relied on by both sides. In this relatively brief trial with relatively
    focussed issues, the risks of moral or reasoning prejudice were not high.

[18]

The conclusion that the absence of a cross-count
    or propensity reasoning instruction did not prejudice the appellant is
    reinforced by the lack of request for such instructions and the lack of an
    objection to the charge at trial. Where the defence was  alerted to, and had a
    meaningful opportunity to raise such matters, but strategically chose not to, a
    complaint on appeal about missing instructions may be unavailing:
R. v.
    Graham
, 2015 ONCA 113, 330 O.A.C. 394 at para. 32.

[19]

Duty counsels other two grounds of appeal are
    that the convictions on the counterfeit mark charges were unreasonable, as the
    marks were not proven to be counterfeit, as opposed to being genuine but
    appearing on otherwise false documents.

[20]

We are satisfied that this argument was
    sufficiently referenced in the pre-charge conference to permit its
    consideration on appeal.

[21]

Section 376(2)(b) of the
Code
provides:

Every one who, without lawful
    authority,

(b) sells, or exposes for sale, or
    has in his possession a counterfeit mark, is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding fourteen years.

[22]

The
Code
defines mark to include the
    mark of a province of Canada. It is not disputed that the trillium logo on the
    drivers licence and health cards fits that description. The
Code
does
    not define counterfeit.

[23]

In
R. v. Sommani
, 2007 BCCA 199, 218
    C.C.C. (3d) 168, the court held that counterfeit marks are those that falsely
    purported to be genuine official marks: at para. 66. This statement was made
    in the context of a case where the accused had made false ID cards and argued
    (unsuccessfully) that the marks he had put on them did not look enough like the
    genuine government marks to be considered counterfeit versions. In
R. v.
    Ariri
, 2007 ONCJ 535, 75 W.C.B. (2d) 468, the accused possessed drivers
    licences in other persons names that had been illegally altered. They were
    genuine cards but with illicit photo and information substitutions. It was
    held that once the original photo was removed and a new one with new
    information substituted, the mark or design became a counterfeit: at paras.
    14, 48.

[24]

The appellants argument is that there was no
    evidence in this case as to how the licence or health cards came to be issued or
    appear as they did  that is, with the trillium logo, the appellants
    photograph, but a different name and birthdate(s). There was no evidence they
    were not issued by the government in that form. Put differently, there was no
    evidence that the government did not issue those cards at all (as in
Sommani
),
    or that they were issued by the government and then altered after issuance (as
    in
Ariri
).

[25]

Trial counsel raised this concern during the pre-charge
    conference. The trial judge noted that, I dont think thats a necessity the
    Crown has to prove, quite frankly. The document speaks for itselfI dont think
    youre going to make a lot of headway in that regard. Ultimately, despite the
    lack of evidence, the trial judge concluded that, the cards had a counterfeit
    mark, Im going to direct on that they find that. He then instructed the jury
    that there was no issue that the identity cards bore a counterfeit mark.

[26]

It is unnecessary for us to decide the precise
    scope of the counterfeit mark offence in s. 376(2) of the
Code
to
    resolve this appeal. Even on the scope contended by the Crown before us, the
    trial judge erred in giving the direction that he did. The result is that the convictions
    on the counterfeit mark counts cannot stand.

[27]

The Crown concedes that for a mark on a
    government issued document to be counterfeit, the document on which it appears
    must at least have been altered in some way after the government issued the
    document and applied the mark. While there was no direct evidence of
    alteration, Crown counsel argues that the jury could compare the impugned drivers
    licence and health cards to others legitimately issued to the appellant (which
    were also in evidence), and draw the conclusion that the impugned identity
    cards had been altered post-issuance.

[28]

Although there was evidence on which the jury
    could have made such a comparison, the trial judge took that issue away from
    the jury with his instruction to treat the marks as counterfeit.

[29]

Accordingly, the convictions on the counterfeit
    mark charges must be set aside. It follows that we must also set aside the
    conditional stay of the convictions on the identity documents charges. It was
    not argued, nor do we see any basis, why the net global sentence would be
    varied as a result of this change, other than to allocate the net term of four
    months incarceration to the identity documents charges.

[30]

Accordingly, the conviction appeal is allowed to
    the extent of setting aside the convictions on Counts 3 and 4 (the counterfeit
    mark charges). The conditional stay of the convictions on Counts 1 and 2 (the
    identity documents charges) is lifted. Leave to appeal sentence is granted, but
    the sentence appeal is dismissed, other than to vary it to provide that the
    sentence allocated to Counts 3 and 4 be allocated to Counts 1 and 2.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


