The Queen v. Valois, [1986] 1 S.C.R. 278

 

Her Majesty The Queen                                                                   Appellant;

 

and

 

Jean Valois       Respondent.

 

File No.: 17788.

 

1985: May 23; 1986: March 27.

 

Present: Dickson C.J. and Beetz, Estey, Chouinard, Lamer, Wilson and Le Dain JJ.

 

on appeal from the quebec court of appeal

 

                   Criminal law ‑‑ Forgery and similar offences ‑‑ Uttering forged document ‑‑ Charges not proven ‑‑ Fictitious bills for fees not used as genuine documents ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 324(1), 326.

 

                   Ciment Québec Inc. obtained from the Provincial Bank the financing needed to carry on its operation. To thank a Mr. Doyon, the Bank employee who handled the matter, the president of the company decided to pay him $3,000 annually for three years. The payments were made through respondent, a lawyer and son‑in‑law of Doyon, who made up fictitious bills for fees to the company. Respondent cashed the cheques issued by the company, deducted a certain amount for income tax purposes and handed the remainder of the money over to his father‑in‑law. Respondent was charged with fraud, conspiracy to commit fraud, forgery and uttering forged documents and was acquitted on all the charges by a judge of the Court of Sessions of the Peace. The appeal by the Crown on the three counts of uttering forged documents was dismissed.

 

                   Held: The appeal should be dismissed.

 

                   Even assuming the bills prepared by respondent are forged documents within the meaning of s. 326  of the Criminal Code , respondent did nothing beyond preparing or conspiring to utter them. Nothing in the evidence showed that he uttered or dealt with the fictitious bills as genuine documents. Acts in preparation for uttering do not constitute acts of uttering.

 

Cases Cited

 

                   R. v. Keshane (1974), 20 C.C.C. (2d) 542; R. v. Paquette, [1979] 2 S.C.R. 168, reversing (1977), 42 C.C.C. (2d) 57 (Que. C.A.), referred to.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 324(1), 326.

 

                   APPEAL from a judgment of the Quebec Court of Appeal (1983), 35 C.R. (3d) 166, affirming the acquittal by Lanctôt J. of the Court of Sessions of the Peace¹ on three counts of uttering forged documents. Appeal dismissed.

 

¹ C.S.P. (District of Québec), No. 200‑01‑1145‑81, January 29, 1982.

 

                   Claude Haccoun, for the appellant.

 

                   Jean‑Claude Hébert and Sophie Bourque, for the respondent.

 

                   English version of the judgment of the Court delivered by

 

1.                Lamer J.‑‑Jean Valois was charged in Quebec City with a total of twelve counts, namely, conspiracy to commit fraud, fraud, forgery and uttering forged documents on the basis of the facts related below. He was acquitted of all these charges by Lanctôt J. of the Court of Sessions of the Peace. The Crown appealed the acquittal on only three of the counts, the three counts of uttering forged documents. Though these three counts referred to three transactions which occurred on different dates, the charges were essentially the same, namely

 

[TRANSLATION]  ... knowing that a document was forged, namely a bill for $3,000 ... addressed to Ciment Québec Inc., did unlawfully use it as if it were genuine, thereby committing an indictable offence under s. 326(1) (a) of the Criminal Code .

 

The appeal was unanimously dismissed by the Quebec Court of Appeal (1983), 35 C.R. (3d) 166, and the Crown is now appealing to this Court with leave. I would dismiss this appeal.

 

Facts

 

2.                Bisson J.A., writing the reasons of the Court of Appeal, summarized the facts as follows at pp. 168‑69:

 

                    [TRANSLATION]  Ciment Québec Inc. experienced financial difficulties between 1965 and 1969 as a result of the lack of working capital of one of its subsidiaries.

 

                    Ciment Québec Inc. was dealing with the Provincial Bank, and Grégoire Doyon was one of the latter's managers.

 

                    Grégoire Doyon took an interest in their file and obtained financing from his bank which put Ciment Québec back on its feet.

 

                    Gustave Papillon, the president, directing mind and holder of the vast majority of shares in Ciment Québec Inc., appreciated Doyon's help and decided to reward him by paying him $3,000 a year for three years.

 

                    However, it was preferable not to make the payments directly to Doyon by Ciment Québec, and it was agreed that they would be made through the respondent, a young lawyer admitted to the Bar in November 1975, and the son‑in‑law of Doyon, who made up fictitious bills for fees to Ciment Québec.

 

                    Thus, $3,000 was paid in each of the years 1975, 1976 and 1977.

 

                    As respondent had to pay tax on this income, after cashing the cheques he kept part to cover the additional tax he would have to pay and handed the remainder over to his father‑in‑law.

 

                    Grégoire Doyon of course received less than $9,000 as a result of these deductions, a fact to which, noted the judge, no one raised any objection.

 

                    The judge made another observation. The payments made to Grégoire Doyon were legitimate and caused no prejudice to Ciment Québec. In addition, the three participants were aware of the purpose of the lawyer's bills, and therefore no one was misled into believing that they were genuine documents.

 

3.                Sections 324(1)  and 326(1)  of the Criminal Code  are the applicable provisions in the case at bar:

 

                   324. (1) 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 upon as genuine, to the prejudice of any one whether within Canada or not, or

 

 (b) that some person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.

 

                   326. (1) Every one who, knowing that a document is forged,

 

(a) uses, deals with, or acts upon it, or

 

(b) causes or attempts to cause any person to use, deal with, or act upon it,

 

as if the document were genuine, is guilty of an indictable offence and is liable to imprisonment for fourteen years.

 

Judgments

 

4.                The judgment of the Court of Appeal dealt primarily with the question of whether, to be a forgery within the meaning of s. 326 of the Code, a document must meet the substantive requirements of s. 324(1) of the Code, or whether it need only be a false document in the literal meaning of the word. The essence of the Court of Appeal's judgment is to be found in the following passage from the reasons of Bisson J.A., at p. 172:

 

                    [TRANSLATION]  Appellant wanted us to interpret s. 326 as if it simply read "false document" rather than "forged document".

 

                    I cannot agree with appellant's proposition that simply because a document is false it constitutes a forged document within the meaning of s. 326.

 

                    For the bills to be regarded as forged documents within the meaning of s. 326, the evidence must establish all the essential components of s. 324.

 

                    Thus, although these were false documents which respondent knew to be false, and which he intended to be acted upon as genuine, there was no proof of an intention to cause prejudice.

 

                    In the case at bar, since one of the essential components, namely the "forged" document as defined in s. 324 was absent, respondent was properly acquitted.

 

5.                At trial Lanctôt J., after reviewing R. v. Keshane (1974), 20 C.C.C. (2d) 542 (Sask. C.A.) and R. v. Paquette (1977), 42 C.C.C. (2d) 57 (Que. C.A.), rev'd [1979] 2 S.C.R. 168, regarding the connection between ss. 324 and 326, said:

 

                   [TRANSLATION]  Despite the interest aroused by these two judgments, it is of very little importance in the case at bar that the false bill has to be regarded as a false document in the dictionary sense. We in fact know that it was not made to cause prejudice. It was a false document nevertheless, and the accused was charged with using it as if it were genuine.

 

                    But what was the ultimate use of it?

 

                    It is more realistic to think that this false bill was never used as if it were genuine. On the contrary, it was used as if it were false. The three parties principally involved in the matter deliberately decided to have it prepared and used it as if it were false, not as if it were genuine. In this regard CIMENT QUEBEC, a body corporate, acted through its representative Papillon.

 

                    Even if by some stretch of the imagination it were to be regarded as having been used as genuine, the fact remains that no one was injured by the deception. Using a forgery as if it were an original assumes someone on whom the deception is to be practised. There has to be a target. Who were the targets in this case? ‑‑ the banking authorities? ‑‑ hardly, since with respect to them the use of the false bill was latent. There was no evidence that they ever saw the bill. The false bill was never seen by the Revenue Department either, though the latter benefited from it.

 

                    While it is true that there is nothing in s. 326 which expressly states that use of a false document must cause prejudice to someone, the fact remains that someone, even if not prejudiced, must be a witness to the deception, and it would be an absurdity for such a witness to be one of the perpetrators of the forgery.

 

                    For all these reasons, the Court finds that the accused did not make use of the forgery, and he should be acquitted on all the counts relating to this charge.

 

6.                In my view Lanctôt J. was correct. Though in different terms, he based his decision to acquit Valois on the counts of uttering forged documents on the fact that, if indeed the bills were forged within the meaning of s. 326, the accused did nothing beyond preparing or conspiring to utter them, and that there was nothing in the evidence to show that he began uttering them or that he dealt with or acted upon them as genuine documents in relation to anyone else.

 

7.                Indeed, the making of forged documents by Valois (assuming for purposes of argument that these documents were in fact forged), the fact of putting Mr. Papillon of Ciment Québec into possession, the cashing and giving the money by the accused to his father‑in‑law in the manner indicated, certainly all constitute substantive components of a conspiracy to utter forged documents and to commit the offences on which the other charges against the accused were based. However, in relation to the crime of uttering or attempted uttering, these were only acts in preparation for uttering, and in no way constitute acts of uttering or even incipient uttering. The accused, his father‑in‑law and Papillon set up all that was necessary to use these fictitious bills for fees as if they were genuine, if and when that proved to be necessary. They did not have to do so; at least, the evidence did not establish that they did. The acquittal by Lanctôt J. is therefore correct and the appeal should be dismissed.

 

                   Appeal dismissed.

 

                   Solicitor for the appellant: Claude Haccoun, Montréal.

 

                   Solicitor for the respondent: Jean‑Claude Hébert, Montréal.