R. v. Singh, 2006 ABPC 324 (CanLII)
Date:
2006-11-17
File number:
050293687P1
Citation:
R. v. Singh, 2006 ABPC 324 (CanLII), <http://canlii.ca/t/1q2w4>, retrieved on 2020-03-08
In the Provincial Court of Alberta
Citation: R. v. Singh, 2006 ABPC 324
Date: 20061117
Docket: 050293687P1
Registry: Calgary
Between:
Her Majesty the Queen
- and -
Jaswant Singh
Corrected judgment: A corrigendum was issued on November 17, 2006; the corrections have been made to the text and the corrigendum is appended to this judgment.
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Count 1: Between the 1st day of March, 2004, and the 2nd day of October, 2004, both dates inclusive, at or near Calgary, Alberta, did unlawfully make a [sic] false documents to wit: Driver Education Course Completion Certificate [sic] knowing them to be false, with intent that the said documents should in any way be used or acted upon as genuine to the prejudice of Alberta Transportation thereby committing forgery, contrary to Section 366 of the Criminal Code of Canada.
Count 2: Between the 1st day of March, 2004, and the 2nd day of October, 2004, both dates inclusive, at or near Calgary, Alberta, being an Official Licensed Provincial Driver Training Instructor, did commit a fraud or breach of trust in connection with the duties of his office by provided fraudulent documents with the intent that they be acted upon by Alberta Registries and if genuine, contrary to Section 122 of the Criminal Code of Canada.
[2] At trial, the Crown called four witnesses: Detective Robertson of the Calgary Police Service, Don Wilson, Acting Director of Driver Licensing with Alberta Structure & Transportation, Robert James Gray, a private investigator, and Constable Ahmed Alkarout, a peace officer with the Edmonton Police Services. The latter two witnesses acted in an under cover capacity and posed as students and enrolled at the Delta Driving School in the City of Calgary.
[4] For the reasons set forth hereafter, I find that the Crown has proven both Counts beyond a reasonable doubt and find the Accused guilty. However, I enter a conditional stay of proceedings on Count 1 in accordance with the Kienapple principle.
FACTS
[5] The facts as I find them are as follows. In November 1993 as part of its Privatization Program, the Provincial Government privatized driver testing. It then became the mandate of the provincial government to test and monitor those individuals who did the testing as they had become, in essence, agents of the Crown.
[6] Don Wilson, who at the time of trial was the Acting Director of Driver Licensing with Alberta Structure and Transportation, first became aware of the Accused in 1995 when he was employed at the Delta Driving School as a senior driving instructor. Also at that time, the Accused took his Class 1 Driving Instructor’s test which he successfully completed and became a Class 1 Driving Instructor.
[7] Wilson testified that in order to obtain a Class 1 driver’s license a person has to pass a medical examination, a vision test (which was conducted at the Registry Agent) and then pass the Airbrake Program and be awarded a Notice of Driver Education Course Completion before being allowed to take the Class 1 road test. The road test must be successfully completed before the Province of Alberta will issue a Class 1 driver’s license.
[8] Wilson further testified that in December 2003 the Accused became certified by the Government of Alberta to teach the Airbrake course. That involved a teaching component and a testing component on the part of the instructor.
[9] Wilson explained that the candidate taking the Airbrake course had to obtain a score of 80% or more on the knowledge examination. If the candidate scored less than 80%, then he or she were not entitled to proceed to the practical test. Rather, arrangements had to be made to rewrite the knowledge exam at least 24 hours or more later.
[10] The Calgary Police Service commenced an investigation into the Delta Driving School’s practices involving instruction for the Class 1 drivers license program. To that end, arrangements were made to secure the services of two individuals who would become undercover operatives and enroll as students at the Delta Driving School. These two individuals were Robert James Gray (who at the time was employed as a private investigator but who had had a varied prior career including fifteen years with the R.C.M.P.) and Constable Ahmed Alkarout of the Edmonton Police Service.
[11] On March 12, 2004, Robert Gray attended at the Delta Driving School posing as a student. After paying his instruction fee, he attended the class the following day (March 13, 2004) which commenced with him viewing the Bendix airbrakes tape.
[12] At approximately 7:30 that evening, Gray wrote the knowledge examination. He was given Exam Booklet #2 where all the correct answers were marked. He proceeded to write the exam using ink and deliberately chose five incorrect answers so that he would fail the exam. (80% was required to pass.)
[13] Gray then handed his paper in to the Accused who started correcting it. The Accused called Gray over and told him that four answers were wrong and then stated “Maybe you should go back to the desk and – and redo them.” Gray did that and subsequently received a passing grade.
[14] Gray further testified that following the instruction on March 13th, the Accused passed around a form entitled Airbrake Course Participant List and asked all class members to sign it.
We, the undersigned participants, do hereby certify the course of instruction we have received contained a minimum of:
3. Our having personally performed two practice airbrake pre-trip inspections and two practice brake adjustments.
4. Our having personally observed two practice airbrake pre-trip inspections and two practice brake adjustments performed by another student.
5. A knowledge examination and a practical examination of our personal ability to perform an airbrake pre-trip inspection and a brake adjustment.
[16] None of the above had occurred at the time that the Accused asked Gray and the other class members to sign it.
[17] Gray was told to come back at 5:00 p.m. the following day to do the practical component. He showed up as directed; however, he did not perform any of the functions listed on the checklist.
[18] The Pre-trip Inspection Checklist (Exhibit 4) was completed but not in Gray’s presence. Gray was then provided with the Notice of Driver Education Course Completion duly signed by the Accused on March 14, 2004 (Exhibit 6) which document was mistakenly dated March 13, 2004.
[19] Constable Alkarout was asked by the Calgary Police Service to pose as an individual who wanted to sign up for the airbrake course offered by the Delta Driving School. To do this, he obtained a British Columbia drivers license in an assumed name which he then arranged to have transferred into an interim Alberta license. Alkarout then proceeded to register at the Delta Driving School and pay his course fee.
[20] On October 2, 2004, he attended at the Delta Driving School where he was instructed by the Accused. He testified that his class (which included five other individuals) was shown the Bendix video which lasted approximately 45 minutes and after a short break the Accused proceeded to lecture on the airbrake system.
[21] Later that same afternoon, Constable Alkarout wrote the knowledge examination which consisted of both true and false questions and multiple choice questions. He intentionally marked several wrong answers scoring thirteen out of a total of twenty five. Alkarout then took the completed answer sheet to the Accused who proceeded to mark it in front of him. The Accused then handed it back to Alkarout and stated “You may want to look at the – these questions again.”
[22] Alkarout noticed that the correct answers had a check mark placed beside them whereas the incorrect answers were left untouched. He stated “So it was a no brainer” and he went back and corrected some of his mistakes by erasing the incorrect answers and placing the correct answers instead and returned the sheet to the Accused who advised Alkarout that he had now passed.
[23] At trial, Alkarout was shown the Theory Examination Answer Sheet/Pre-trip Authorization Checklist for Bob Gray (Exhibit 4). He confirmed that it was similar to the sheet he had used to write his exam.
[24] Constable Alkarout testified that the Accused did not require him at any time to display a proficiency in the steps of the practical test as set forth in the Pre-trip Inspection Checklist.
[25] Notwithstanding, the Accused subsequently filled out and signed the Notice of Driver Education Course Completion and dated it October 2, 2004. The document was issued in Alkarout’s assumed name, Ali Mahamoud (Exhibit 5).
ANALYSIS AND LAW
366 (1) Forgery – Every one commits forgery who makes a false document, knowing it to be false, with intent
(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not, or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.
(2) Making a false document – Making a false document includes
(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.
“false document” means a document
(a) the whole or a material part of which purports to be made by or on behalf of a person
(I) who did not make it or authorize it to be made, or
(ii) who did not in fact exist,
(b) that is made by or on behalf of the person who purports to make it but is false in some material particular,
(c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made;
[28] On the facts, it is clear that the Accused was a licensed Airbrake instructor, licensed to conduct examinations and produce completed Notices of Driver Education Course Completion on behalf of the Government of Alberta (Exhibit 3). The two Crown witnesses – Gray and Alkarout – both attended the Delta Driving School posing as students for the purpose of taking the Airbrake course was taught by the Accused.
[29] Both Gray and Alkarout failed the written knowledge examination but obtained passing grades after receiving improper assistance from the Accused. They then went on to take the practical portion of the Airbrake course and neither demonstrated independently the required proficiency. Notwithstanding that, each received a completed Notice of Driver Education Course Completion (Exhibits 5 & 6). The Notice of Driver Education Course Completion was a prerequisite before that person would be allowed to do the Class 1 road test.
[30] In my opinion, sub-paragraphs (a), (b) and (c) of s. 321 are disjunctive and not conjunctive. That is to say it is sufficient that the Crown prove one of the paragraphs. In this particular case, it seems clear that sub-paragraph (b) is engaged in that the certificates were false “in some material particular”.
[31] The Notices of Driver Education Course Completion issued to Messrs. Gray and Alkarout were false in that neither of those two individuals completed the knowledge exam or the practical exam in the proper fashion yet received certificates suggesting that they had. It was clear on the evidence that a Notice of Driver Education Course Completion was a prerequisite before a person was entitled to perform the Class 1 road test. It was only in the event that the person then successfully completed the road test that the Province of Alberta would issue the Class 1 driver’s license. It therefore follows that the Province of Alberta would clearly rely upon the Notice of Driver Education Course Completion as part of the process that had to be followed before the person in question was entitled to receive a Class 1 driver’s license.
[32] Accordingly and I hold the Crown has proven this charge beyond a reasonable doubt and find the Accused guilty.
122. Breach of trust by public officer – Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.
[34] Section 122 was considered by the Supreme Court of Canada in the recent decision of R. v. Boulanger, 2006 SCC 32 wherein the Court allowed an appeal in the Quebec Court of Appeal and entered an acquittal in favour of the accused.
[35] In writing for the Court, Chief Justice McLachlin made the following observation at paragraph 10:
I conclude that Parliament based s. 122 of the Criminal Code on the offence of misfeasance in public office, as defined by Sir James F. Stephen, in Digest of the Criminal Law (4th ed. 1887), at p. 85, while choosing not to incorporate the different offence, also recognized by Stephen, of neglect in public office. Much of the confusion surrounding s. 122 stems from the failure to recognize the difference between the two offences and from the fact that Parliament adopted only one of them. Interpreting s. 122 as incorporating the common law offence of misfeasance in public office, I conclude that, on the facts found by the trial judge, the appeal should be allowed.
[36] In coming to that conclusion, Chief Justice McLachlin made the following comment at paragraph 48:
The point of departure for defining the Canadian offence is a recognition that two distinct offences existed at common law – misfeasance in office and neglect of official duty – and that only the first, misfeasance in office as set out by Stephen, was incorporated into the Criminal Code in 1893. It follows that the mens rea and the actus reus of s. 122 must be determined by reference to the common law authorities on misfeasance in public office, not those relating to the different offence of neglect of official duty.
The public is entitled to expect that public officials entrusted with these powers and responsibilities exercise them for the public benefit. Public officials are therefore made answerable to the public in a way that private actors may not be. This said, perfection has never been the standard for criminal culpability in this domain; “mistakes” and “errors in judgment” have always been excluded. To establish the criminal offence of breach of trust by a public officer, more is required. The conduct at issue, in addition to being carried out with the requisite mens rea, must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour. This concern is clearly reflected in the seriousness requirement of Shum Kwok Sher and the Attorney’s General Reference. What is required is “conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder” (Attorney’s General Reference, at para. 56). As stated in R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, “[t]he law does not lightly brand a person as a criminal” (p. 59).
[38] The Court went on to state that in order to establish the offence of breach of public trust by a public officer the Crown must establish beyond a reasonable doubt the following elements:
1. The accused is an official.
2. The accused was acting in connection with his or her office.
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office.
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
5. The accused acted with the intention to use his or her public office other than the public good, for example, for a dishonest, partial, corrupt or oppressive purpose.
[39] Clearly the Accused was “an official” within the meaning of s. 118 of the Criminal Code as being someone who “is appointed to discharge a public duty”. That duty of course was to conduct the Airbrake course and the examination therefor.
[40] In his dealings with both Gray and Alkarout the Accused was clearly acting in connection with those duties. Furthermore, I find that the Accused breached the standard of responsibility and conduct demanded of someone in that position and that his behaviour does represent “a serious and marked departure from the standards expected of an individual in his position of public trust”. To issue completed Notices of Driver Education Course Completion where the individuals in question did not demonstrate the requisite proficiency is clearly a serious matter particularly having regard to the potentially disastrous consequences of an improperly qualified individual driving a large tractor trailer unit. To do so is both dishonest and corrupt.
[41] This is far more than an error in judgment or negligence. Indeed, Don Wilson testified that the Accused “knew his stuff” and was capable of providing a good class.
[42] Accordingly, I find that the Crown has proven Count 2 beyond a reasonable doubt and find the Accused guilty.
[43] By providing the false documents in question, the Accused did commit an offence contrary to s. 122 of the Criminal Code. This raises the question as to whether the Kienapple principle applies in this case.
[44] In my opinion, the essence of the offences pursuant to ss. 366 and 122 are the same – a public official in breach of the duties imposed upon him – produced false documents, namely the completed Notices of Driver Education Course Completion.
[45] I hold that the Kienapple principle applies in the case at bar. The wrongs here in my opinion are not “different” and accordingly a conditional stay is entered upon the less serious charge, which is Count #1: R. v. Yellow Oldwoman, 2003 (ABCA) 342 para. 26-27.
Heard on the 22nd & 23rd days of November, 2005; the 6th day of February 2006; the 29th day of May, 2006; and the 19th day of July, 2006.
Dated at the City of Calgary, Alberta this 17th day of November, 2006.
J.D.B. McDonald
A Judge of the Provincial Court of Alberta
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Appearances:
C. Purvis
for the Crown
B. Popovic
for the Accused
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Corrigendum of the Judgment
of
The Honourable Judge J.D.B. McDonald
_______________________________________________________
1. After hearing submissions from counsel, I hereby direct a conditional stay upon Count #1 and not Count #2. Accordingly, paragraphs 4 and 45 should be amended accordingly.
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