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R. v. Jahanrakhshan 2013 BCCA 196 (CanLII)
COURT OF APPEAL FOR BRITISH COLUMBIA
| Date: | 2013-04-29 |
|---|---|
| Docket: | CA039085 |
| Citation: | R. v. Jahanrakhshan, 2013 BCCA 196 (CanLII) |
| Charges: | Canadian Criminal Code ss. 129(a); 139(1); 342(1); 403. |
| Between: | Regina Counsel: R.R. Hira, Q.C. |
Respondent |
|---|---|---|
| And: | Kamyar Jahanrakhshan Counsel: I. Donaldson, Q.C. |
Appellant |
| Before: | The Honourable Madam Justice D. Smith The Honourable Mr. Justice Groberman The Honourable Madam Justice Bennett |
On appeal from: Supreme Court of British Columbia, May 16, 2011,
(R. v. Jahanrakhshan, 2011 BCSC 893 (CanLII), Vancouver Registry No. 25452)
(R. v. Jahanrakhshan, 2011 BCSC 893 (CanLII), Vancouver Registry No. 25452)
| Place and Date of Hearing: | Vancouver, British Columbia | October 29, 2012 |
|---|---|---|
| Place and Date of Judgment: | Vancouver, British Columbia | April 29, 2013 |
Written Reasons by:
The Honourable Mr. Justice Groberman
Concurred in by:
The Honourable Madam Justice D. Smith
The Honourable Madam Justice Bennett
The Honourable Mr. Justice Groberman
Concurred in by:
The Honourable Madam Justice D. Smith
The Honourable Madam Justice Bennett
Reasons for Judgment of the Honourable Mr. Justice Groberman
[1] The appellant was implicated in the use of forged credit cards between April and June of 2008. When he became aware that the RCMP was making inquiries of foreign banks in connection with the crimes, he himself contacted the banks, posing as a Canadian police officer. He obtained information and documents from bank officials and advised them that they did not need to forward affidavits to the RCMP.[2] Eventually, the appellant was arrested in connection with his interference with police investigations. At the time of his arrest, he was in possession of a credit card that appeared to be counterfeit.
[3] The appellant was charged on a 21-count indictment with various offences. He was ultimately found guilty on eleven counts:
- ■ four counts of personation contrary to s. 403 of the Criminal Code, R.S.C. 1985, c. C-46;
- ■ two counts of attempting to obstruct justice contrary to s. 139(1) of the Criminal Code;
- ■ two counts of obstruction of a peace officer engaged in the execution of duties (s. 129(a) of the Criminal Code); and
- ■ three counts of possession or use of a credit card obtained by the commission of an offence contrary to s. 342(1)(c) of the Criminal Code.
[5] With respect to the personation counts, the appellant acknowledges that he contacted four banks, identifying himself as “Frank Pohl” of the “Canadian Police”. While accepting that there is a real person named “Frank Pohl”, the appellant contends that the evidence did not show that he intended people to identify him as that person. Rather, he says, it only showed that he was using an assumed name, an act which falls short of personation.
[6] With respect to the obstruction charges, the appellant contends that there is no evidence that he intended to, or succeeded in obstructing justice. Rather, he says that while he deceitfully obtained information and a disabled credit card from bank officials, his conduct was not calculated to impede police investigations, and did not do so. He says the fact that he obtained the material through subterfuge does not suffice to make out charges of obstruction. In addition, he argues that the obstruction charge relating to intercepting a “credit card” was not worded in such a manner as to capture the disabled credit card that was sent to him.
[7] Finally, the appellant says that the trial judge erred in finding him guilty of the credit card offences relating to the Bank Bukopin credit card found in his possession at the time of his arrest. He says that the judge misapprehended the expert evidence in respect of the card. The evidence, he contends, did not establish that the card was counterfeit. Further, he says the judge relied on inadmissible evidence to conclude that the appellant was aware that the card was not genuine.
Factual Background
[8] Between April and June 2008, the appellant used several forged credit cards to make large purchases, including three luxury cars and a yacht. The forged cards bore the numbers of valid credit cards issued by foreign banks. The appellant was eventually convicted on several counts in relation to the use of the counterfeit credit cards – see R. v. Jahanrakhshan, 2011 BCSC 1164 (CanLII), aff'd. 2013 BCCA 128 (CanLII), though nothing in the present appeal turns on those convictions.[9] The financial institutions whose card numbers were used included Barclays Bank, St. George Bank, Bank of Western Australia, and the National Bank of Abu Dhabi. Between July 1, 2008 and May 28, 2009, the appellant contacted those four institutions on several occasions, using the name “Frank Pohl” (some bank officials wrote his name as “Frank Paul”, but nothing turns on that apparent error). He represented himself as a member of the “Canadian Police” or a similarly-named organization. He was able to convince the institutions to provide him with information, affidavits, and as I will discuss, a genuine credit card bearing the same account number as a forged card that he had used. The judge found that the appellant was guilty of personation in holding himself out as Frank Pohl.
[10] The obstruction charges relate to specific incidents in which the appellant communicated with bank officials. The first relates to conversations with officials at the National Bank of Abu Dhabi.
[11] In late June 2008, the appellant used a forged credit card to purchase an automobile in Vancouver. The counterfeit card was in the appellant's name, and purported to be issued by Citibank. It bore the card number of a genuine credit card issued by the National Bank of Abu Dhabi to one of its clients in the United Arab Emirates. On July 1, 2008, the appellant, identifying himself as Frank Pohl of the Canadian Police, contacted the National Bank of Abu Dhabi. He pretended that he would assist the bank in recovering the money (CAD $20,000) that had been charged to the card. The bank employee with whom he spoke advised the appellant that the genuine card had been returned to the bank by the cardholder and remained in the bank's custody. The employee sent a fax confirming that information to “Mr. Frank” of the “Canadian Police” at the appellant's fax number.
[12] On September 23, 2008, the appellant contacted the bank again, still pretending to be “Frank Pohl”. He requested that the bank send the genuine credit card to him. The bank obliged, sending the card (which had had two holes punched in it to make it evident that it was no longer valid) to the “Canadian Police” at the appellant's home address, to the attention of “Mr. Frank”. The covering letter included the statement, “We believe that this card will help for your investigations purposes”.
[13] The original card was not located by the police in their investigations. When they searched the appellant's residence, however, they did find the envelope in which it had been sent, the associated correspondence, and a photocopy of the card. The trial judge concluded that the card had been destroyed by the appellant:
[83] What happened to the actual card that was sent to the address on West Cordova Street? The only inference that can reasonably be drawn is that the accused received it and disposed of it, disposing of a document and a credit card that might be evidence in a possible prosecution against Mr. Jahanrakhshan. There has been no evidence to suggest otherwise.[14] The judge found that the appellant's conduct in relation to the National Bank of Abu Dhabi credit card constituted an attempt to obstruct justice.
[15] The second obstruction conviction arose out of communications between the appellant and employees of St. George Bank in Adelaide, Australia. Counterfeit credit cards bearing the numbers of St. George Bank credit cards had been used by the appellant in automobiles purchases in Vancouver on June 26, 2008.
[16] On May 27, 2009, the appellant purporting to be “Frank Pohl”, contacted St. George Bank, and advised its employee that the matter had been resolved with the return of an automobile to the dealer. He advised the employee that the bank had been or would shortly be reimbursed for the full amount of the fraudulent charges. In the result, he said, there was no need to take any further action, and in particular, it was not necessary for the bank to provide affidavits.
[17] When the employee advised him that an affidavit had already been provided, the appellant became quite excited, and asked that a copy be faxed to him. The bank employee said he would do so. In fact, the employee was suspicious of the call, and instead attempted to contact the RCMP officer to whom he had provided the affidavit. When the appellant did not immediately receive the promised fax, he called the bank employee again, and reiterated that he wanted the affidavit faxed to him without delay. The employee promised to do so, but never did send the affidavit to the appellant.
[18] The trial judge concluded that the provision of false information to the St. George Bank employee amounted to an attempt to obstruct justice. At para. 93 of her judgment, she commented that “[i]t was a clumsy and poorly executed attempt, a few days too late, but a wilful attempt nevertheless”.
[19] The convictions for possession and use of a credit card obtained by the commission of an offence relate to a Bank Bukopin Visa credit card found in the appellant's wallet when he was arrested on June 1, 2009. The appellant acknowledges that he possessed the card, and that he used it in transactions alleged in the charges against him. The issues at trial were whether the card was a forgery, and, if so, whether the appellant was aware that it was a counterfeit card.
Analysis – Personation
[20] Section 403 of the Criminal Code creates the offence of personation:403. (1) Everyone commits an offence who fraudulently personates another person, living or dead,[21] “Identity information” is defined in s. 402.1, and includes a person's name.403. (2) For the purposes of subsection (1), personating a person includes pretending to be the person or using the person's identity information – whether by itself or in combination with identity information pertaining to any person – as if it pertains to the person using it.
- (a) with intent to gain advantage for themselves or another person;
- (b) with intent to obtain any property or an interest in any property;
- (c) with intent to cause disadvantage to the person being personated or another person; or
- (d) with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.
[22] The word “personate” is no longer commonly used, but its definition does not create any difficulty. The Shorter Oxford English Dictionary (Third Edition) includes, as a definition of “personate”, “to pretend to be (another), usually for purposes of fraud”. This definition is echoed in s. 403(2) of the Criminal Code, and captures the essence of the crime.
[23] In the case before us, it is evident that the appellant adopted a false identity – that of Frank Pohl of the Canadian Police – and that he did so with the intent of obtaining property (in this case, affidavits, documents, and a disabled credit card) from four banks. The appellant could have been charged with personating a peace officer (s. 130 of the Criminal Code), but he was not. Instead, the Crown sought to prove that the appellant was pretending to be an identifiable person whose name is Frank Pohl.
[24] It appears to be well-established in Canadian law that a person does not commit the crime of personation simply by adopting a false identity. In R. v. Northrup (1982), 1 C.C.C. (3d) 210 (N.B.C.A.), the accused gave a false name to police when he was arrested. He was convicted of personation, but the conviction was reversed on appeal. The New Brunswick Court of Appeal stated that the offence of personation “… contemplates the assumption for fraudulent purposes of the identity of another person now existing or who has existed” and differentiated between “pseudonymity” and personation.
[25] In obiter remarks in R. v. Hall (1984), 12 C.C.C. (3d) 93, the Ontario Court of Appeal indicated that it considered Northrup to have been correctly decided. I agree with that assessment. It seems to me that the words “another person, living or dead” in s. 403 of the Criminal Code contemplate a real person. Those words are not apt to describe a fictitious entity. Section 403, then, is directed to situations in which a person adopts the identity of a real person.
[26] The question in the case before us, then, is whether the appellant, in describing himself as “Frank Pohl” was adopting the identity of a real person. The evidence establishes that there is a person by that name. That person worked as an investigator for the Royal Bank of Canada sometime prior to 2009. He never worked for the RCMP, nor did he have any involvement in any of the investigations of the credit card forgeries that lie behind this case. The evidence indicates that the various bank employees to whom the appellant represented himself as Frank Pohl had no knowledge of the former Royal Bank investigator. Neither is there any evidence that the appellant knew of him. In short, the evidence fails to connect the appellant's use of the name “Frank Pohl” with a real person.
[27] In my view, in order to make out the crime of personation, it is necessary to show more than that there happens to be a person whose name is the same as that used by the accused. It must be shown that the accused was actually representing himself as the person who was personated. For example, if the appellant had represented to the bank officials that his name was “William Shakespeare”, the mere fact that a well-known person had that name would not suffice to make the appellant guilty of personation. Even if the appellant's inspiration for the use of that name had been familiarity with the Bard of Avon, it could not be said that he was pretending to be the deceased playwright.
[28] In R. v. Westerdahl (1988), 82 N.S.R. (2d) 178 (N.S.C.A.), the accused, when entering Canada from the United States identified himself as “Glen S. Miller”. The accused gave evidence that the name was fictitious, and that he used it because it was easy to remember, “recalling to mind the late well-known American bandleader”. While the bandleader was actually “A. Glenn Miller”, rather than “Glen S. Miller”, the case did not turn on the subtleties of initials or double consonants. Rather, the question was whether, quite apart from the use of the name, the accused had adopted the identity of the (presumed) dead bandleader. The evidence clearly indicated that he had not. The bandleader vanished in 1944, at the age of 40, while the accused was not born until 1961. He made no reference to being the famous Glenn Miller.
[29] In many cases, the mere use of the name of another real person will support an inference that an accused person is personating that person. If an accused attempts to take advantage of that real person's identity – for example to cash a cheque made out to that person, or to use that person's right to enter an otherwise-restricted area – it will be obvious that the accused is actively attempting to portray him or herself as that person.
[30] I do not mean to suggest that the offence of personation requires that an accused make use of some special attributes possessed by the person who is being impersonated. Any evidence that an accused has pretended to take on the personal characteristics of a person whose name is being used will tend to show that the accused is purporting to be that person, and not simply using a pseudonym.
[31] In the case before us, the trial judge relied on the fact that there was a genuine person named “Frank Pohl” to sustain a conviction for personation. There was, however, no evidence from which it was possible to infer that the appellant was representing himself as that person, rather than simply using a pseudonym. The evidence did not even go so far as to show that the former bank investigator known as “Frank Pohl” was a person known to the appellant. Nor did the appellant pretend to be a bank investigator, or suggest that he had any attributes of the Frank Pohl identified by the trial judge as the person being personated.
[32] In short, the evidence was incapable of showing more than that the appellant used a pseudonym. That did not amount to personating Frank Pohl. I would, therefore, allow the appeal with respect to the four personation counts.
Obstruction of Justice – The National Bank of Abu Dhabi Credit Card
[33] The appellant's conviction for obstruction of justice in connection with the National Bank of Abu Dhabi credit card arises out of a count in the indictment which alleged that he “did wilfully attempt to obstruct … the course of justice by intercepting documents and a credit card from National Bank of Abu Dhabi”. He makes two arguments with respect to this count on appeal. First, he says that the disabled credit card that he obtained was not a “credit card” as that expression is defined in the Criminal Code. Second, he says that his conduct in obtaining the card was not capable of obstructing justice.[34] “Credit card” is defined in s. 321 of the Criminal Code:
“Credit card” means any card, plate, coupon book or other device issued or otherwise distributed for the purpose of being used:[35] The appellant contends that by the time he intercepted the plastic card issued by the National Bank of Abu Dhabi, it was no longer a credit card, since it had been disabled, and could no longer be used for the purposes set out in the definition.
- (a) on presentation to obtain, on credit, money, goods, services or any other thing of value, or
- (b) in an automated teller machine, a remote service unit or a similar automated banking device to obtain any of the services offered through the machine, unit or device;
[36] It seems to me that the fact that the credit card had been disabled did not change the purpose for which it was issued. In my view, the count under which the appellant was charged was apt to describe the plastic card that he obtained from the National Bank of Abu Dhabi. Even, however, if I am wrong in my view that the card remained a “credit card” when the appellant obtained it, the count was still broad enough to describe the card, since it spoke not only of a “credit card”, but also of “documents”. The card was, at all times, a “document”, which is defined in s. 321 of the Criminal Code as follows:
“Document” means any paper, parchment or other material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device, and includes a credit card ….[37] I would also reject the appellant's contention that interception of the card did not amount to obstruction of justice. While it does not appear that the Crown would have used the card in the prosecution even if it had been available to it, the card did have potential evidentiary value in the prosecutions against Mr. Jahanrakhshan. The trial judge made no error in inferring that the appellant obtained and disposed of the card in an attempt to destroy evidence tending to show his guilt.
[38] I would therefore dismiss the appellant's appeal with respect to the National Bank of Abu Dhabi obstruction of justice count.
Obstruction of Justice – St. George Bank Affidavits
[39] The appellant argues that the judge erred in finding him guilty of obstruction with respect to the St. George Bank affidavits. He says that all that he did was attempt to obtain copies of affidavits which he would ultimately have been entitled to in any event. Further, he says that the judge misapprehended the evidence, which he claims did not support the inference that he was attempting to interfere with bank officials providing affidavits. In that regard, he notes that the evidence given by the bank official in cross-examination had a different nuance than the evidence given in chief.[40] I am of the view that the trial judge's findings were supported by the evidence, and that she did not misapprehend it. The bank official gave evidence to the effect that the appellant advised him that “there was no need for the bank to take any further action” and that “we managed to get recovery without the need for you to get involved with an affidavit”. The clear message to the bank was that it did not have to make any further efforts to provide evidence to the police. While the official did not repeat those statements in cross-examination, he in no way resiled from them. Further, the idea that the appellant was attempting to interfere with the investigation process is the only rational explanation for his phone call.
[41] In my view, the judge made no error in finding that there was an attempt by the appellant to obstruct justice in respect of the preparation of the St. George Bank affidavits.
Possession/Use of a Credit Card Obtained by the Commission of an Offence
[42] The appellant also appeals from his convictions on three counts of possession/use of a credit card obtained by the commission of an offence. The three counts all relate to a Bank Bukopin Visa card found in the appellant's wallet when he was arrested. The appellant does not dispute that he had the card or that he used it. He does say, however, that the evidence failed to show that the card was counterfeit or, if it was, that he knew that it was counterfeit.[43] With respect to whether the card was, in fact, counterfeit, the appellant says that the trial judge misapprehended the evidence that was presented. He says that, properly construed, the evidence that was before the court left open the possibility that the card was genuine.
[44] The evidence establishing that the Bank Bukopin Visa card was counterfeit came principally from Sgt. Richard Koop of the RCMP. Sgt. Koop was accepted by the court as an expert on the production and identification of both forged and legitimate credit cards and in the equipment used for forging payment cards.
[45] Sgt. Koop testified to the effect that four aspects of the card raised concerns that it was counterfeit: a mismatch between the pre-printed number on the card and the first four digits embossed on it; the presence of embossed numbers on a card which was labelled “electronic use only”; the absence of metallic “tipping” on the top surface of the embossed numbers; and a defect on the right side of the signature panel. As Sgt. Koop said very little about the alleged signature panel defect, I will not refer to it further.
[46] Sgt. Koop's opinion was that the defects in the card pointed to the use of a legitimate card that had been modified:
I -- my opinion is that it's a legitimate card that has been modified with -- with other credit card data that does not belong on this particular card. The -- the account number and the expiry date and the name on this card -- the name reads “Kamyar Jahanrakhshan” -- I believe wasn't originally on this particular card, and -- and that that was placed on that card at a later time.[47] His evidence, then, was that an “electronic use only” card had been embossed with false account information, including Mr. Jahanrakhshan's name and an account number that was not consistent with a Bank Identification Number pre-printed on the Bank Bukopin card.
[48] In cross-examination, the defence attempted to minimize the importance of the defects identified by Sgt. Koop. It attempted to draw a comparison between the mismatched numbers and mismatched serial numbers on currency. The witness acknowledged that currency printed with mismatched serial numbers is a very rare occurrence, but that it does exist. He said that he had never seen a credit card with a mismatch between the pre-printed number (which corresponds with the first four digits of the Bank Identification Number of the institution issuing the card) and the first four digits of the embossed credit card account number. He did accept that, in theory, certain errors might be introduced in the manufacturing process that could result in the wrong account number being embossed on a card, or the wrong “blank” being introduced into the machine used to produce it.
[49] Sgt. Koop also agreed that metallic tipping can wear off of a credit card over time, though he said that normally a residue can still be detected, particularly on the side of the embossed numbers. He accepted that an absence of any trace of metallic tipping, by itself, would not establish a card as counterfeit.
[50] Although he was examined at length concerning “electronic use only” payment cards, he did not resile from the position that such cards do not bear embossed account numbers.
[51] In her judgment, the trial judge dealt briefly with the question of whether the credit card was counterfeit:
[112] … I accept his evidence that the credit card found in the possession of Mr. Jahanrakhshan is a counterfeit credit card. Sgt. Koop acknowledged that the card, which was Exhibit 5 in this trial, had a general physical appearance consistent with an ordinary credit card and that nothing jumps out that it is forged; but he pointed out areas which would indicate a forged card. The micro printing, for example, and a discrepancy in certain numbering on the front and the back of the card.[52] The appellant has identified two mistakes made by the judge in her recounting of the evidence. First, Sgt. Koop did not mention any problems with the card's micro-printing, though another witness did do so. Second, Sgt. Koop did not refer to a discrepancy between numbers printed on the front and back of the card, but rather a discrepancy between a number printed on the front of the card and the embossed account number.
[113] Sgt. Koop was not agreeing with defence suggestions in cross-examination that there could be a manufacturing glitch responsible for the difference in the numbering, as might occur occasionally when paper currency is printed.
[114] I accept the evidence that the credit card in question is a counterfeit or forged credit card.
[53] Neither of these minor errors constitutes a misapprehension of the substance of the evidence such as to bring into question the correctness of the judge's verdict. In an oft-quoted passage from R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 221 (Ont. C.A.), Doherty J.A. described the basis for review of a verdict founded on a material misapprehension of evidence:
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a “true” verdict.[54] In R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] 3 S.C.R. 732 at para. 2, after quoting those passages from Morrissey with approval, the Court added:. . .If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[2] Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.[55] The trial judge's errors in recounting the evidence were not errors of substance, and did not strike at the core of her reasoning. She based her conclusions primarily on Sgt. Koop's evidence with respect to the discrepancy in the numbers on the card. The fact that she mistakenly referred to some of the numbers as being on the back of the card rather than on the front was an inconsequential error of detail.
[56] The appellant's contention that the trial judge misapprehended the evidence arises from an exaggerated view of the effectiveness of the cross-examination of Sgt. Koop. While Sgt. Koop agreed that by introducing certain errors in the manufacturing process, it was possible to emboss the wrong number on a card, or use the wrong blank card to produce a credit card, he did not go so far as to suggest that either of those errors represented a realistic possibility. Further, his evidence that an “electronic use only” card should not have been embossed at all was effectively unchallenged. The trial judge's reliance on Sgt. Koop's evidence does not disclose any material misapprehension of evidence.
[57] On the question of whether it was proven that the appellant knew the card to be counterfeit, the appellant says that the judge improperly relied on evidence of his previous dealings with counterfeit cards for the purpose of attributing expertise to him. He says that the evidence should not have been considered. In particular, the appellant says that the trial judge erred in admitting into evidence certain things that were seized from his residence in 2008 during the investigation of the earlier credit card frauds.
[58] The material objected to by the appellant includes a Bank Bukopin Visa Electron Card with no number or name on it, a magnetic card reader/writer, and a bag of blank Visa cards in various bank names but lacking credit card numbers and account-holder names.
[59] The appellant says that the evidence was highly prejudicial to him, as there was a real danger that it would be inappropriately used as evidence of his propensity to counterfeit credit cards. Citing R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, he says the evidence ought to have been excluded.
[60] The judge used the challenged evidence, together with other evidence, for a much more limited purpose: that of finding that the appellant had specialized knowledge of the credit card counterfeiting that would allow him to know that a card was counterfeit:
[114] I accept the evidence that the credit card in question is a counterfeit or forged credit card. Did the accused have knowledge that it was? In my view, he did. The evidence and exhibits before the court, especially items taken from the home of the accused, and excerpts from his emails and cell phone records, indicate a person with specific knowledge of and familiarity with the world of the production and/or enhancement of credit cards.[61] I am not persuaded that the evidence considered by the trial judge was inappropriately admitted. The appellant's knowledge of the characteristics of counterfeit credit cards was an important issue on the Bank Bukopin counts, and though there might have been some danger of a trier of fact engaging in improper propensity reasoning based on the evidence, it cannot be said that its probative value was outweighed by that possibility.. . .[117] Did Mr. Jahanrakhshan know the Bank of Bukopin credit card in his possession was a forged credit card? While the evidence shows that it was, to other than the eye of an expert, a credit card that appeared to be authentic, the evidence also indicates that Mr. Jahanrakhshan had some of the instruments required to produce a forged or a fake credit card. These included Exhibit 11 at trial, a magnetic reader/encoder, plus cards and a CD with programming instructions; plus Exhibit 32 was a magnetic stripe card reader. There was a bag of blank Visa cards in various bank names, unembossed. Exhibit 33 contained embossed cards. While some were printed and bank information from different financial institutions was contained on them, they contained no client names or embossed account numbers. A few had Mr. Jahanrakhshan's photo on the back.. . .[122] I can only conclude from the evidence that the accused had a working knowledge of counterfeit credit cards. The evidence leads me to conclude, beyond a reasonable doubt, that the accused knew that the credit card allegedly from the Bank of Bukopin, Visa Number 4126 1500 4012 5217, was obtained by the commission in Canada of an offence, contrary to s. 342(1)(c) of the Criminal Code of Canada.
[62] The trial judge did not engage in propensity reasoning based on the impugned evidence. Rather, she found that the appellant had specialized knowledge and experience such that it was clear that he must have been aware that the Bank Bukopin credit card he used was counterfeit.
[63] I am not persuaded that the judge made any reviewable error in finding the appellant guilty on the three counts of possession and use of a credit card obtained by the commission of an offence, and would dismiss the appeal in respect of those convictions.
Obstruction of a Peace Officer
[64] The appellant has presented submissions with respect to the judge's findings of guilt on the charges of obstruction of a peace officer in the execution of duty. Those charges were conditionally stayed. As there are, in the result, no convictions entered on those counts, they are not properly before this Court. In the result, I need not comment on the arguments that the appellant presented in his factum.Disposition
[65] In the result, I would allow the appeal against conviction in respect of the four counts of personation and direct the entry of verdicts of acquittal on those counts. I would dismiss the appeal in respect of the other five counts.
“The Honourable Mr. Justice Groberman”
I agree:
“The Honourable Madam Justice D. Smith”
I agree:
“The Honourable Madam Justice Bennett”
Canadian Legal Information Institute (CanLII)
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