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Forgery And The Signing of Another’s Name
[28] The portion of these provisions which is relevant to the allegation that forgery was committed when Mr. Foley signed Mr. Tobin’s name to the notice of sale is found in s. 321 and reads:
‘“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”
[29] As can be readily discerned from the foregoing, a document which purports to be made by a person who did not authorize it is to be considered false. It is thus an act of forgery. It follows as a consequential jural correlative that if such an instrument was authorized to be made, it is not to be deemed a “false document” and is not an act of forgery.
[30] Such authorized signings have always been regarded as valid and binding and are treated as merely a method of signature by the person in whose name the actual signatory purports to have acted. Romer, L.J., acknowledges this in the following passage extracted from p. 232 of London County Council v. Vitamins Ltd. et al., [1955] 2 All E.R. 229 (C.A.):
“It is established, in my judgment, as a general proposition that at common law a person sufficiently ‘signs’ a document if it is signed in his name and with his authority by someone else, and in such case the agent’s signature is treated as being that of his principal.”
[31] Denning, L.J., in London County Council points out that the failure of the signatory to indicate that he or she was acting by proxy is bad practice and misleading because anyone not knowing the principal’s signature would think that he or she had actually signed the document. Nevertheless, he held that the failure to do so was not a fatal flaw.
[32] It would, therefore, appear to be a rank incongruity for the law to treat such authorized signings as creating binding and enforceable obligations while at the same time leaving the door open for them to be regarded as forgeries. It would also be casting the net of that offence so widely that it would brand as forgeries such innocent acts as the signing of credit card slips or receipts by one family member on behalf of and with the permission of another.
[33] The Criminal Code avoids such incoherence and severity by confining forgeries to the unauthorized making of false documents. This is achieved through the operation of the above quoted extract from the definition of “false document” in s. 321. Its effect is to exclude authorized signings from the ambit of the offence of forgery under the Criminal Code. This applies even to documents which fail on their face to indicate that the actual signatory is acting as proxy of another. These documents may be misleading as a result, but they do not have the property of falsity inherent in forgery.
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