Robinson v. R., [1974] SCR 573

Supreme Court of Canada

Robinson v. R., [1974] S.C.R. 573

Date: 1973-02-28

Richard Robinson (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1972: November 7; 1973: February 28.

Present: Abbott, Judson, Ritchie, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Possession of counterfeit money—Statement by accused at time of arrest that the coins “are not counterfeit”—Lawful justification or excuse—Mens rea—Criminal Code, ss. 309(1), 408, 605.

The appellant, a coin dealer, was charged with possession of counterfeit money. The police found in his apartment, hidden in a chesterfield cushion, a quantity of United States gold coins and a quantity of United States “dimes” marked 1941/42. After his arrest, the appellant told the police that the coins “are not counterfeit”. The dimes were legal tender for their face value although the peculiarity in their dating gave them a considerable numismatic value. Having found that the gold coins were not legal tender in the United States, the trial judge accepted the argument that the dimes could not be said to be “money” in any accepted sense because the accused did not intend to use them as currency but was holding them for the purpose of selling them as numismatic curiosities. On this basis, he found the appellant not guilty of the offence. The Court of Appeal concluded that the appellant had not met the burden of showing lawful justification or excuse, and directed a verdict of guilty. On appeal to this Court, it was contended that proof of mens rea was an essential ingredient of the offence and that the evidence of the statement made by the appellant at the time of his arrest that the coins were not counterfeit, constituted evidence of “lawful justification or excuse”, which the trial judge had to weigh against the Crown’s evidence in order to reach his conclusion, so that the issue before the Court of Appeal involved a question of fact, and there was therefore no jurisdiction in that Court to entertain the appeal of the Crown under the provisions of s. 605 of the Code.

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Held: The appeal should be dismissed.

Per Abbott, Judson, Ritchie and Spence JJ.: What the appellant said when he was first arrested was admissible in evidence. Viewed in isolation the statement made by the accused was not a statement that he had no knowledge of the true nature of the coins and this construction could only be placed upon his language if it could be said that the circumstances under which the statement was made were such as to make the inference necessary. No such inference could be justified in the circumstances of this case nor, was such an inference derived by the trial judge. In any event the question of whether or not the words “lawful justification or excuse” are to be construed as including the statement made by the appellant is a question of law and they cannot be held to bear such a meaning in the circumstances of the present case.

Per Laskin J.: Want of intention to use the counterfeit coins as currency if established in a balance of probabilities is as much within the scope of lawful justification or excuse as proof that the accused was unaware that the coins were counterfeit. There is no evidence in the present case upon which a finding could be made that the appellant did not intend to use the coins as currency.

APPEAL from a judgment of the Court of Appeal for Ontario, setting aside a verdict of acquittal and directing a conviction against the appellant. Appeal dismissed.

G.A. Martin, Q.C., for the appellant.

E.G. Hachborn, for the respondent.

The judgment of Abbott, Judson, Ritchie and Spence JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Court of Appeal for Ontario setting aside the verdict acquitting the appellant which

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had been entered at trial before His Honour Judge Daymen, and directing that a verdict of guilty be substituted therefor on the charge that the appellant and one Henry Mehrer “without lawful justification or excuse had in their possession counterfeit money contrary to the Criminal Code.”

Mehrer did not appear at the appeal before the Court of Appeal and he is not a party to this appeal which is brought by Robinson under the provisions of s. 618(2)(a) of the Criminal Code, the relevant portions of which provide:

618. (2) (a) A person who is acquitted of an indictable offence other than

(i) an offence punishable by death or

(ii) by reason of a special verdict of not guilty on account of insanity and whose acquittal is set aside by the court of appeal…may appeal to the Supreme Court of Canada on a question of law.

The italics are my own.

The circumstances giving rise to the laying of this charge are that the appellant, who appears to have been engaged in the coin business and was the prospective purchaser of an organization known as the Canada Coin Exchange, was accompanied to his apartment by three police officers on the afternoon of May 14, 1969, where they uncovered a cardboard box which had been hidden in a chesterfield cushion and had contained 711 United States gold coins and 146 United States “dimes” marked 1941/42. None of the coins was genuine, but the evidence was such as to justify the trial judge in finding that the gold coins were not legal tender in the United States. The dimes, on the other hand, were legal tender for their face value although the peculiarity in their dating gave them a numismatic value of between $100 and $800 each.

The appellant was charged under s. 392 (now 408) of the Criminal Code which provides, in part, that:

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Everyone who without lawful justification or excuse, the proof of which lies upon him, has in his custody or possession counterfeit money is guilty of an indictable offence.

This section must be read in conjunction with s. 391(b)(1) (now 406) by which it is provided that:

‘Counterfeit money’ includes a false coin or a false paper money that resembles or is apparently intended to resemble or pass for current coin or current paper money

and with s. 391(d) which provides that:

‘Current’ means lawfully current in Canada or elsewhere by virtue of a law, proclamation or regulation in force in Canada or elsewhere as the case may be.

The learned trial judge having found that the gold coins were not legal tender in the United States, proceeded to accept the argument advanced by counsel for the accused that the dimes could not be said to be “money” in any accepted sense because the accused did not intend to use them as currency but was holding them for the purpose of selling them as numismatic curiosities for some hundred of dollars, and on this basis he found the appellant not guilty of the offence as charged. In this regard the relevant portions of the learned trial judge’s reasons for judgment read as follows:

Mr. Martin argues that these dimes cannot be said to be money in any accepted sense of that phrase, and I agree with that argument. Reference is made to the case of Moss versus Hancock, which is reported in 1899, 2 Queen’s Bench Division at page 111, and at page 116, the following occurs:

Money as currency, and not as medals, seems to me to have been well defined by Mr. Walker in ‘Money Trade and Industry’ (1) as ‘that which passes freely from hand to hand throughout the community in final discharge of debts and full payment for commodities, being accepted equally without reference to the character or credit of the person who offers it and without the intention of

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the person who receives it to consume it or apply it to any other use than in turn to tender it to others in discharge of debts or payment for commodities.’

Now if you examine these silver coins, they are said to be copies of what was known as a 1941/42 dime which has become a collectors’ item apparently because of an under-printing of the one under the two on the coin. The evidence before me is that they have a value of anywhere from $100.00 to $800.00 apiece. If they were genuine, I would think they would be—they certainly would not be the object of ordinary commerce passed from hand to hand as money as defined in the part I have just read from the case of Moss and Hancock and I must find from that definition of money, which I find to be the proper one, they are not money and the prisoners will be discharged; the charge is dismissed.

A representative of the Treasury Department of the Secret Service in Washington, D.C., gave the following evidence with respect to the counterfeit dimes which were found in the appellant’s possession:

Q…I have in this plastic bag which is part of exhibit number 2, 146, 1942 over 1941 U.S. dimes. Are these currency in the United States of America?

A. Most definitely.

Q. Are they legal tender?

A. They are.

Q. If they have been—they were genuine since the day they were minted?

A. If they were genuine, they would be legal since they were minted in the United States.

Q. And if they were genuine, would they be legal tender today?

A. They would be, sir.

It is thus apparent that these false coins resembled and were “apparently intended to resemble…current coin” within the meaning of s. 391(b)(1) of the Criminal Code and that in their primary character they were therefore “counterfeit money” within the meaning of section 392 and this character is not, in my opinion, altered by the fact that they were also curiosi-

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ties having an enhanced value on the numismatic market. Nor do I think that these coins cease to be counterfeit money in the hands of the appellant because of the high probability that he was holding them in the hope of disposing of them for their greatly enhanced value as curiosities.

I am not persuaded that the definition quoted by Darling J. in Moss v. Hancock[1] has any application to the present case. The definition was there applied in support of the conclusion that where a stolen current coin having enhanced numismatic value had been actually sold as a curiosity an order might be made under s. 100 of the Larceny Act, 1861 (24 & 25 Vict., c. 96) directing its return to the true owner. The question at issue in that case was clearly stated by Darling J. at page 116 where he said:

Now, here it is plain that the mere fact that the stolen gold piece was money would not render it unfit for the application to it of an order for restitution. The true question seems to me to be whether by the manner of dealing with it which the thief adopted the gold piece passed in currency.

In the present case the 1941/42 dimes were counterfeit money within the meaning of the Criminal Code which the appellant was charged with having in his possession, and I do not think that reliance on a case which is concerned exclusively with the meaning of “money” in relation to the sale of current coins of numismatic value under the provisions of another statute affords any justification for the learned trial judge’s finding that the coins here in question “are not money”.

The appellant, however, contended that proof of mens rea was an essential ingredient of the offence charged and that the evidence of one of the police officers to the effect that the appellant stated at the time of his arrest that the coins were not counterfeit, constituted evidence of “lawful justification or excuse” which the trial judge had to weigh against the Crown’s evidence in order to reach his conclusion, so that

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the issue before the Court of Appeal involved a question of fact and there was therefore no jurisdiction in that Court to entertain the appeal of the Crown under the provisions of s. 605 of the Criminal Code or otherwise and the conviction by that Court should therefore be set aside.

Section 295(1) (now 309(1)) of the Criminal Code provides in part as follows:

309. (1) Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house-breaking…

and I adopt the language used in relation to that section in Tupper v. The Queen[2] as applying with equal force to a case such as this where the accused has been shown to be in possession of counterfeit money. In the Tupper case, Mr. Justice Judson said, at page 594:

Once possession of an instrument capable of being used for housebreaking has been shown, the burden shifts to the accused to show on a balance of probabilities that there was lawful excuse for possession of the instrument at the time and place in question.

In the present case neither the appellant nor his confederate gave any evidence and it is not now disputed that the dimes found in the appellant’s possession were counterfeit, but it is urged that his unsworn statement to the police at the time of his arrest should be admitted as evidence of lack of knowledge of their counterfeit character. This proposition was argued before the trial judge but, as he found himself able to dispose of the case on the ground that the coins were “not money”, he did not need to consider the appellant’s unsworn statement that they were “not counterfeit”.

In my opinion, what the appellant said when he was first arrested for having these counter-

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feit coins in his possession was admissible in evidence, but it is now contended on his behalf that when he said of the coins “they are not counterfeit” this was tantamount to saying that he had no knowledge of their true nature, and therefore amounted to at least some evidence of “lawful justification or excuse” within the meaning of s. 392 of the Code. This contention must be predicated on the assumption that lack of knowledge on his part must necessarily be inferred from the statement which he made. Viewed in isolation the statement made by the accused was not a statement that he had no knowledge of the true nature of the coins and in my view this construction could only be placed upon his language if it could be said that the circumstances under which the statement was made were such as to make the inference necessary. I do not think that any such inference could be justified in the circumstances of this case, nor, as I have said, was such an inference drawn by the learned trial judge.

In any event, the question of whether or not the words “lawful justification or excuse” as used in s. 392 are to be construed as including the statement made by the appellant is a question of law and in my opinion they cannot be held to bear such a meaning in the circumstances of the present case. See Edwards (Inspector of Taxes) v. Bairstow[3], per Lord Radcliffe at page 33 and Regina v. Vail[4].

For all these reasons I would dismiss this appeal.

LASKIN J.—I have had the advantage of reading the reasons in this case prepared by my brother Ritchie, and I agree with him that the legal issue whether the coins were “counterfeit money” within s. 391(b)(i) and (d) of the Criminal Code (now s. 406(a)) must be resolved against the accused. There is no doubt that he was in possession of them, and hence the issue

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that remains in respect of culpability under s. 393(b) (now s. 408(b)) is whether the accused has discharged the burden, on a balance of probabilities, of showing lawful justification or excuse.

The question of lawful justification or excuse was argued by counsel for the accused on two bases; first, that the accused did not intend to use the counterfeit coins as currency or as a medium of exchange; and, second, that this intention was a matter of fact which was either found in the accused’s favour by the trial judge or was a matter for the trier of fact so as to require a new trial.

Since the accused was acquitted at his trial, the Crown’s appeal to the provincial Court of Appeal was limited to questions of law alone. That Court, properly in my view, reversed the determination of the trial judge that the coins were not money for the purposes of the Criminal Code. On the further question raised before that Court respecting a requirement of mens rea, it considered the point in terms of lawful justification or excuse, based upon a denial by the accused that he knew the coins to be counterfeit. It was the Court’s conclusion that the accused had not met the burden of showing lawful justification or excuse and it went on to say this:

Accordingly, the inference to be drawn from the simple fact of possession, unexplained as it was, was sufficient to support the [a?] verdict of guilty.

(The interpolation is mine since the accused was acquitted at trial.)

What was contested by the accused in this Court in respect of lawful justification or excuse was not “knowing possession” but rather the want of intention to use the counterfeit coins as currency. In my opinion, this, if established on a balance of probabilities, is as much within the scope of lawful justification or excuse as proof that the accused was unaware that the coins were counterfeit. I exclude, of

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course, use for a fraudulent purpose. The offence with which the accused was charged is a “currency” offence, so captioned in the part of the Criminal Code in which it appears; and it is clear from the associated sections of the Code that what is aimed at by all of them is the prohibition of having or using counterfeit money for currency purposes.

The section under which the accused was charged calls for evidence, whether adduced on his behalf or brought out in the Crown’s case, upon which it can be concluded on a balance of probabilities that his possession did not carry with it any intention to use or pass the coins as currency. The accused, who was a coin dealer, gave no evidence, and the only testimony going to any lawful justification or excuse was that of a police officer who told of a statement of the accused after his arrest that (referring to the coins) “they are not counterfeit”. The trial judge, disposing of the case on the ground that the coins were not money, made no findings on lawful justification or excuse. The Court of Appeal, as I have already noted, addressed itself to the question whether the accused had proved that he did not know the coins were counterfeit; and its conclusion, to be consistent with its limited jurisdiction upon an appeal against acquittal, must be treated as based upon an absence of any evidence of lawful justification or excuse. Certainly, if there was evidence from which a trier of fact might infer want of knowledge, it would be beyond the power of the Court of Appeal to dispose of this issue, and a new trial would be necessary.

Counsel for the accused did not stress want of knowledge here, but he did contend that implicit in the trial judge’s reasons was a finding that there was no intention to use the coins as currency. As a finding of fact, it would support acquittal and would be beyond challenge on appeal unless there was no evidence at all to

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support it. I cannot, however, read the reasons of the trial judge as involving the implicit finding contended for by counsel for the accused. Is this then a case where a defence open on the evidence has not been disposed of and a new trial must be ordered? The judgments of this Court in Hubin v. The King[5] and in Paige v. The King[6] were invoked in support of an affirmative answer to this question. They were cases however where there was evidence upon which the trier of fact could act under the law as established by this Court. There is no evidence in the present case upon which a finding could be made that the accused did not intend to use the coins as currency.

It follows that the burden of proof upon the accused cannot be met, and I would accordingly dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Martin and Carter, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.