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92 Count 14 charges Benson with forging Province of Manitoba Conservation Lease No. 6498. This count reads as follows:
14. That they, the said Marlene Greenfield and Marvin Benson at or near the City of Selkirk in the Province of Manitoba on or about the 7th day of January 2000 did unlawfully forge Province of Manitoba, Manitoba Conservation Lease Number 6498.
93 I find this count the most troubling. As has already been mentioned, this lease had two signatures at the end of it, that of Marlene Greenfield and Jean Plant. The evidence of Ms Scanlon was that the signature was not that of Jean Plant, nor did she know anything about it. So, who forged Jean Plant’s signature on this document? The trial judge held that the Crown had not proven beyond a reasonable doubt that it was Benson. Since this is a Crown appeal, the Crown must show that the trial judge erred in law.
94 It is the argument of the Crown that the trial judge misapprehended the law regarding the circumstances under which a person is authorized to sign another’s signature and unduly extended the application of the principle in the case of R. v. Foley (E.F.) (1994), 1994 CanLII 9760 (NL CA), 120 Nfld. & P.E.I.R. 24 (Nfld. C.A.) to circumstances not addressed in that situation. In Foley, the accused had received authorization to sign Mr. Tobin’s signature to the document before he signed Mr. Tobin’s name to it.
95 In the instant matter, while Jean Plant’s assignment of interest in her eligibility for a lease was made on December 28, 1999, authorization to execute all necessary lease and lease assignment documents on her behalf was not given to Marlene Greenfield (and not to Benson) until October 2002, more than two years after the lease was signed.
96 As I indicated earlier, I believe it is that fact that differentiates the Grimolfson matter from the Plant matter, and led to the conviction on counts 18 and 19.
97 The Crown then argues that logically there should be a conviction on count 14. However, I believe the acquittal on count 14 rests on the trial judge’s finding of fact, and not on his application of the law.
98 In Lease No. 6498, the lessee’s signature above Marlene Greenfield’s signature is not Ms Plant’s or Ms Scanlon’s signature. However, the trial judge made findings of fact in regard to the lease based on the evidence adduced at the trial. Based on the testimony of a number of witnesses, the trial judge found that he was unable to determine with any certainty who signed the document and what occurred in regard to witnessing the signature. He dismissed the charge because he was left with a reasonable doubt as to whether Benson or someone else was authorized to make the lease, whether the lease was a false document and whether Benson knew that the lease was false when it was made. In this case, the trial judge was tasked with making findings of fact as to the circumstances leading to the creation of this document, and he was not satisfied beyond a reasonable doubt.
99 The Crown advanced a further argument that the trial judge’s decision on this count was inconsistent with his finding that the procedure Benson followed in obtaining the lease was not an honest procedure. The trial judge stated (at para. 34):
I am sympathetic to the Crown’s submission that the procedure followed was not an honest procedure. However, Marvin Benson was on the eligibility committee, and he must have been aware of the Government’s position as described by Mr. Prouse.
100 That paragraph must be read in context with the rest of the reasons and with the findings of the trial judge. A close reading of the decision makes clear that the trial judge did not approve of the ethical conduct of Benson, but found that the conduct fell short of being criminal.
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