R. v. Malvoisin

R. v. Malvoisin Collection Decisions of the Court of Appeal Date 2006-10-02 Docket numbers C41453 Judges Feldman, Kathryn N.; Simmons, Janet M.; Rouleau, Paul S. Subject Criminal Decision Content DATE: 20061002 DOCKET: C41453 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – ANNE LAURIS MALVOISIN (Appellant) BEFORE: FELDMAN, SIMMONS and ROULEAU JJ.A. COUNSEL: Anne Lauris Malvoisin In person Brian Snell Duty Counsel Robert Kelly for the respondent HEARD: September 22, 2006 On appeal from conviction and sentence imposed by Justice Dyson of the Superior Court of Justice dated February 19, 2004. ENDORSEMENT [1] The appellant appeals against conviction and sentence. She was convicted of fraud over $5,000 on the CIBC between August 17 and September 20, 2001, and of uttering a forged driver’s licence on August 17, 2001. [2] Duty counsel raised two specific legal issues: (1) the failure of the trial judge to address the frailty of the eyewitness identification; and (2) the reliance by the trial judge on a handwriting comparison without the assistance of expert evidence. The appellant also pointed out certain features of the evidence on her own behalf. [3] (1) The trial judge was alive to the fact that the eyewitness evidence had some inconsistencies. He found that on that evidence alone there was a reasonable doubt about the identity of the person who opened the account on August 17, 2001. However, he then turned to the other evidence, in particular the fact that the appellant was arrested with several identification documents of Daisy Reid including the same false driver’s licence that the person who presented herself as Daisy Reid on August 17 used. The trial judge rejected as totally incredible the appellant’s explanation for possession of the identification. [4] (2) The trial judge was entitled to compare the appellant’s signature as Daisy Reid on the amendment to the cheque on September 28, 2001 to other signatures of Daisy Reid on other documents presented to the bank without expert handwriting evidence. Although it would have been preferable for him to explicitly caution himself about the care to be taken when making such comparisons unassisted, his conclusion that the handwriting was done by the same person was a reasonable one. It was not reversible error for him to use the hand-writing comparison as one piece of evidence that, taken together with all of the other evidence, satisfied him beyond a reasonable doubt that the appellant who came to the bank to negotiate a cheque on September 28, 2001 was the same person who opened the account on August 17, 2001 and who came to the branch to sign the indemnity agreement for the allegedly lost $25,000 bank draft. As only $500 was deposited on August 17 into the account and all the other money in the account came from the CIBC, the indemnity agreement links the appellant to knowledge of the fraud on the CIBC, even though the evidence was that only men came in to withdraw funds up to September 20, 2001. As the trial judge found, the appellant was at least a party to the fraud. [5] The appeal against conviction is denied. [6] The appellant also appeals the sentence of four months conditional with two years probation. She wanted a conditional discharge in order to be able to travel to the United States. The trial judge rejected that request and adverted to the public interest in imposing a sentence that includes a criminal record. There is no basis for this court to interfere with that disposition. [7] Leave to appeal sentence is granted but the appeal is dismissed. Signed: “K. Feldman J.A.” “Janet Simmons J.A.” “Paul Rouleau J.A.”