Regina versus Minh Khuan Mac: The Law with Respect to Credit Card Forgery

Article excerpt

Charges in this case arose out of a lengthy police investigation in Ontario of three individuals allegedly involved in a variety of criminal enterprises. The investigation resulted in a 31-count indictment based on a number of sections of the criminal code. Minh Khuan Mac was named in seven of the charges and, in 1997, was convicted in an Ontario court on five counts relating to the manufacturing and selling of forged credit cards (Regina v. Minh Khuan Mac, 1997). The five charges were all laid under Section 396(b) of the Criminal Code of Canada (1984) that reads as follows:

369. Exchequer bill paper, public seals, etc.--Every one who, without lawful authority or excuse ...

(b) makes, offers or disposes of, or knowingly has in his possession, any plate, die, machinery, instrument or other writing or material that is adapted and intended to be used to commit forgery ... is guilty of an indictable offence.

That police investigators had found materials and machines capable of being used to manufacture forged credit cards was not in dispute. The court also heard evidence that the defendant could be said to be "in possession" of these materials and machines, and that he was intending to use them to commit forgery. However, questions were raised at trial about the meaning of the word "adapted" as used in the above section of the Criminal Code of Canada. Specifically, defence counsel claimed that the use of this word meant that it was an essential element of the offence that the "plate, die, machinery, instrument or other writing or material" that was the subject of the charge be altered in some way. This would be a crucial finding since, in this case. none of the evidence (with one possible exception) recovered by the police and introduced into court had been altered in any way.

Based on the above argument, defence counsel put forward a motion for a directed verdict of not guilty. The presiding judge in the case (Judge Feldman) disagreed, however, stating:

In my view, where machines or other materials for forgery are usable for both illegal and legal purposes without any modification or alteration, then the most logical and rational meaning to be given to the word "adapted" in s. 369(b) is "suited" and not "altered"... I therefore find that there is no requirement that any of the charged material be modified or altered in order to form the basis for a conviction under the section (Regina v. Minh Khuan Mac, 1997).

As such, Judge Feldman instructed the jury to interpret the word "adapted" to mean "suitable for" and the defendant was duly convicted.

An appeal was subsequently launched in which lawyers for Minh Khuan Mac cited a number of grounds for appeal, including the claim that Judge Feldman erred when she instructed the jury that the word "adapted" in Section 369(b) meant "suitable for". They argued that the correct meaning was "altered so as to be suitable for", and since four of the five charges on which convictions were registered involved material and machinery which was suitable for making forged credit cards, but which had not been altered in any way, those convictions should be overturned.

The case was heard in the Ontario Court of Appeal, and judgement given on February 6, 2001 (Regina v. Mac, 2001). Doherty J.A. wrote the unanimous judgement for the three-judge panel that sat to hear the case, and considered at some length the meaning that should be given to the word "adapted" in Section 369(b). The judgement pointed out that an impressive list of authorities hold that any ambiguity in the interpretation of criminal statutes must be "resolved by choosing the meaning which is most favourable to the accused." This assertion was reinforced by quotations from three decisions of the Supreme Court of Canada, ending with the comments of Lamer C.J.C. in Regina v. McIntosh (1995, p.495) who, when speaking for the majority, said: The Criminal Code is not a contract or a labour agreement. …