Understanding the Legality of Electronic Signatures for General Power of Attorney in Canada

How to eSign a document: electronic signature lawfulness for General Power of Attorney in Canada

good morning your honors matt producer hey please record harvey supplier on behalf of ms sanchez your honors there's one issue before you this morning and that is where the state fails to prove that the signature or the power of attorney is forged where it fails to prove that whether the instrument is notarized or it isn't whether it's presented or it's not whether it's honored or it's not the question is where the state fails to prove that the signature on the power of attorney is forged can the defendant be convicted of uttering a forged instrument and by the way there's a secondary part to that and that is if the state fails to prove that the dot that the document was forged is there a presumption that the document accurately reflects the bond holder in this case his desire to transfer the money and if that's the case then the theft conviction would fall we believe that there was no evidence no evidence whatsoever showing that the signature on the power of attorney and again the question is the signature it's not the notarization it's the signature and since there is no evidence to show why why do we only concentrate on the signature don't we also look at the at the power of attorney itself to determine whether or not it was an authentic document regardless of the signature no no because the notarization the process creates a presumption that the notaries signed the document that's all it does and it allows the the person who has the notarization the the power opportunity to go forward and take some certain actions isn't the the the purpose of the notarization is that the individual who is signing the document is supposed to execute it in front of the notary and the notary then says i'm attesting that judge rothenberg signed this in front of me and that individual is judge rothenberg and i've looked at her id and that is her i understand that that's why i said the notarization process is very important if someone wants to present a legally enforceable document the question is supposing this hadn't been presented to the notary at all all you have is a document with a signature on it now the question is because it hasn't been presented to the notary is that doc is the signature on that document authentic or isn't they they're really separate power of attorney without a no notary on it means nothing no one would accept that i understand that it may mean nothing as to the enforceability of what's on there it doesn't have anything to do with whether the signature is correct and that's a question your client presented to the bank a document which she knew to be an unauthorized unauthentic doc document i knew that the power of attorney that she was presenting to the bank was fraudulent because it had the the the uh signature the the the present the uh the person mr chrysler who is supposed to be granting power of attorney was not present when it was notarized in fact at least one of the witnesses who allegedly witnessed it was not present when it was notarized and therefore when she presented it to the bank as a an authorized authentic power of attorney she knew that to be false well not you need to be false because she's there at the notaries at the notaries uh house or wherever this was and the and mr chrysler had allegedly already signed it he was clearly not present and at least one witness was clearly not present so she knew it was false i mean response it's very important i think i think really this is the crux of the case the crux of the case is whether the it's not whether the document is legally enforceable the crux of the case given the charges that were rendered is whether the signature was forged that's the bottom line here but that's not the allegation that's not what the statute that's not all that the statute permits to be proven yes the statute says that somebody presents a document knowing that it's forged it's not false forged or altered that's right but it's not well there's a difference is there not between false forged or altered is would you say there's there is a difference with this purpose no and i'll tell you why we are and i think this is absolutely critical that we make a distinction that we're talking about uttering a forged document not uttering an an and on enough a an unenforceable document there's a complete difference the state has taken the position that since the document is not legally enforceable to take certain actions from it that creates a presumption that the signature is fraudulent that is not what the statute says the statute says forge and if i may just draw your attention because i think again where does the statute say forged because you seem to imply that it means forged alone if you like i can pull the statue for you we're talking about eight thirty one thirty one point oh two the dot whoever utters and publishes as true whoever utters and publishes as true a false forged or altered record etc or other writing knowing the same to be false altered forged or counterfeited so it's not simply forged and it's not simply the signature even in this case uh our position just joshie misses if the statute said an uh unenforceable document then i think we're all on the same page if the document says sworn to and subscribe before me this blank date of blank and the notary signs that and in fact it was not sworn to or signed before the notary this blank day of blank is that a false document no it's not the action would be against the notary for for notarizing something it's not a false document let me take you back i think this might no no i want to know you do not agree that that's a false document okay i i didn't ask if it's forged i asked do you think that that is a false document i don't i don't think so no okay uh what might help is when the court takes a look at the gin case the lin case the lien is actually an early case both cases come out of the the sect district can they deal specifically with the question that you're asking it does there have to be a proof of actual knowledge or is proof of constructive knowledge she has actual knowledge that this document is false she has actual knowledge because at the time that she's present when it's presented to the notary she knows that mr chrysler is not present so she knows when the notary is notarizing that he is present that that's false she also knows that when it's signed by two witnesses and there is at most one witness present and she's there right she knows that at least the second witness never was before the notary witnessing that document so she knows at least two things about this document is false correct so this is not on on speculation she has personal knowledge that it's false i would suggest you that the statute is intended to go to the signature on the document it is not intended to go to the process by with by which the document is made to be enforceable or not enforceable but you can have for example let's assume i know this is not the facts of the case but let's assume chrysler actually signed the document okay and he signed it and all he wanted a power of attorney was to cash was ten thousand dollars and it was then altered because then that would matter if it was altered then to reflect instead of ten thousand dollars it would be a hundred and ten thousand dollars would you agree then at that point that that would be a false document that's changing the term i'm not sure honestly i i understand that this is consistent with the other questions that that you all have asked i yeah i think we look to the terms of the uh and we see whether they're the terms of the agreement have been materially changed in order to understand so your answer is yes or no because if if even if he signed the document but he had only indicated he wanted ten thousand a ten thousand dollar bond and it was changed to 110 000 would that be a false document under the statute it it is difficult because i think that that if we're if we're prosecuting this person for presenting a document as being enforceable that is not enforceable it's not under this statute it would come under some other type of the question is not whether it's enforceable but if she knew that this document had been altered from ten thousand to a hundred and ten thousand is it a false document is she presenting to the bank a false document one that she knows to be false if she's present when it's altered from here ten thousand to a hundred thousand i think here's what makes the why it's a problem for me to answer your question because at that point the question goes to the merit what's in the document itself it doesn't go to the process by which the document was formulated and by which it was it was then presented you're conceding that that would make it a false document let me go back to because i want to make sure we're all clear on what exactly i'm saying to you if the document had within the document if it changed the terms of what the what the the person who signed the document said or wanted if it changed those terms yes i suppose it would be a partial target if it changed something about the manner by which the document is now presented to the bank no that is not a fraudulent document it's a different statute this statute is specifically geared to whether the whether the defendant is presenting something that is forged fraudulent with regards to the intent of the document so you're suggesting our focus should be on the treasury bonds and not on the note on the power of attorney our document should be uh our focus is what the statute requires the documentation which which document or which item should we be focusing on clearly i mean it's on the document in in the sense that the statute goes to the document she has uttered this document if it turns out let me let me go back because which document has she uttered the if if it turns out that the power of attorney was cr was signed by chrysler who is the old elderly man suppose it was signed with just for the sake of discussion okay do we have a forged document absolutely not we may not have an enforceable document because there may be something about the process by which the notarization is obtained we do not have a fraudulent document we do not have a forged document gin lin this port in taylor the florida supreme court in maddox we've cited all those cases and some of those cases are cited within the cases that we cited have all said that suspicious circumstances do not render a guilty verdict the this court has dealt in in the cases that are cited within gin and lynn the taylor and uh none of those cases dealt with personal knowledge yes as a matter of fact they did which one all right well i can tell you that in taylor which is out of this court it talked about the knowledge that the defendant's knowledge uh had actual knowledge of the cat checks that he had taken to the bank to cash that he had actual knowledge that those were false checks lampley which is a discourse decision which is cited in lynn which is cited in our brief specifically dealt with the question of whether the checks that were brought to the bank were fraudulent or not lynn again they all deal with the question of whether there is actual knowledge that the signature on the checks is false so that is that there is law and the courts have uniformly held that there it has to be a showing of actual knowledge of the falsity of the signature on the document constructive knowledge these didn't deal with notarized documents excuse me these did not deal with notarized documents they're checks that obviously if you don't know that the person who signed it that this is forged if you have no personal knowledge obviously that can't support the conviction but here we have a notarized document that she presents to the bank that she knows was in fact not properly notarized and therefore is a false and fraudulent document because it fraudulently represents to the bank that he was present that he has authorized it it was notarized by the notary in his presence to ensure that this was what his intent was to ensure that this was in fact his signature and to ensure that that he was authorizing them to cash his money and again i i think we're maybe we're coming at this in a different way you're looking to the process and you're saying that since the process was wrong since the definition okay i'm not looking at the process i'm looking at what is being represented to the bank are you representing to the bank when you give them a check that the person who signed it actually signed it or are you representing to the bank when you when you present the notarized document that this was in fact properly not notarized it is an authentic document that would allow the bank to do what it did they're both fraudulent and false they're fraudulent actions based upon false stocks and this i think goes to one of the things that the state was arguing and that's why i brought up the constructive knowledge and it it also applies in your circumstance i would agree if it was constructive if she if she was just handed a notarized document and said listen this has been properly notarized by the notary take it to the bank and go get the ten thousand dollars that would be a different scenario because that would not be actual knowledge that the document that she's presenting to the bank is false but that's not what we have in this case she's present when it's notarized she knows that this is a false document when she presents it to the bank it's a very it it's not a constructive knowledge case yeah and i understand that we are dealing with somewhat of a sophisticated individual here given her professional uh activities but if the state had presented evidence just if the state had presented evidence to show that and powers of attorneys this is what you need to have make sure that you have the person there that but they didn't if they didn't and we have to look at the law though as it is and in this regard the state didn't put on any evidence to show anything about what was presented to the notary in any way being frost fraudulent forged nothing of that there is a distinction and i i do believe that there is a distinction between the process of the notarization of what it actually means and the what is presented to the notary and then there is presented to the to the bank so with that let me uh rest on our briefs and speak to you revital thank you thank you may it please the court linda katz of the attorney general's office here on behalf of the state of florida i'd like to go to the case of jyn and lynn which are both out of the second dca and distinguish them from the subject case aside from the fact that they involved checks they involved a defendant who had a reasonable hypothesis of innocence and the state in those cases was not able to produce any evidence that was inconsistent with that reasonable hypothesis the state maintains number one under no circumstances is the hypothesis of innocence presented by this defendant reasonable in lynn we have a person who was handed a check in the amount of 376 dollars for car maintenance lynn had a witness testified being his mother yes i saw my son received this check for the car maintenance and the state couldn't say anything otherwise and it was a check for 378 dollars which seems reasonable for car maintenance in june we have a roommate who owed 800 a month and jin the defendant said the roommate was behind in his payments several months was out of town called him and said go take these travelers checks that are in an envelope and pay my arrears in rent that's all reasonable and there was nothing offered inconsistent with that reasonable hypothesis here we do have inconsistent evidence we have the defendant's own testimony saying to one person oh this money was for medical treatment saying to another person this money was for a trip to israel saying to another person this money was for a financial investment we also have the defendant saying i met this anonymous person ralph at a religious function and then we have her testifying no i actually met him right on the beach but you know i thought that would sound silly we have numerous other no explanation for why she would be paid ten thousand dollars for this simple transaction that the trusted intermediary could have done on his own thank you very much and then on top of that we have the totally unreasonable situation where we know in day-to-day activity you don't have to work at a bank to know that if you need a notary one of the best places to find one would be at a bank but she knew if she went to a bank everything would be clearly apparent that this is not a transaction that's above board another thing that never came up seymour had his own bonds in this lump together in this transaction there was never a power of attorney as to seymour only as to alfred alfred chrysler seymour's brother there is she was an experienced banker right did she would have someone lawyers and attorneys and anyone who can conduct this transaction as opposed to a total stranger had the defendant work at the specific bank that she went to not that branch but her position at the bank did allow her to get certain technicalities overlooked she was she was a former employee of the maybe not that branch but that bank correct if she knew people at that bank i am not sure if the people knew of her as an employee or knew her personally but either way they knew yes and so perhaps she came in with some credibility exactly so to say that uh the hypothesis was reasonable as quite a stretch but even if we assume it was this case is distinguishable because we do have inconsistent testimony to therefore refute the hypothesis and when you get to intent case after case after case says it's an issue for the jury right it's not proved by direct evidence it's proved by circumstantial evidence and at that point it's for the jury so clearly the court's aware of the many problems with the actual execution of this power of attorney and it seems to be an exercise in semantics as to the signature version versus the process or the um whether it was fraudulent versus forged but as judging as read directly from the statute that governs power of attorney but his argument is the instrument we're talking about is the bond and it's simply a another document that is or may be false and that is simply the process by which the bonds are cashed and if the bonds are not uh uttered in a false or fraudulent or altered or counterfeited manner then the notary document is really irrelevant well i i don't see the logic to that because there is no way that these bonds could ever be negotiated by anyone other than the owner unless it's facilitated by an instrument such as power of attorney so everything leads us back to this power of attorney and when we look at the power of attorney it's clear that it is not valid and it's also clear that this defendant knew so and it in fact was the one who facilitated its execution in that manner and the statute regarding uttering a forged instrument clearly makes it altered falsified not just fraud that is a crime and and the the power of attorney would be included within those instruments yes under the statute it facility absolutely because it facilitated the ultimate theft of the bonds they go in tandem in fact it's a prerequisite there was no way they could it takes the place of the actual individual being there in person but for that power the individual himself would have had to go to the bank to sign and cash those correct and one more thing i think that's very salient is the fact that the owner chrysler and seymour were both incapacitated legally deemed to be incompetent at the time the power of attorney was in fact executed the power of attorney was executed in december of 2008 but there's no evidence in the record that she would know that so that you know that but in terms of the legal possibility that this could ever effectuate the transaction i mean they didn't even have did they have uh the capacity at that point to even um execute any dot legal documents afterwards well the guardianship appears to have was it a limited guardianship excuse me was it a limited guardianship i do not know the full extent of it or if the record even provides testimony terry abrams the guardian did testify but i think there was testimony and i know there was a citation in my brief under issue one as to her testimony that they were not able to transfer money at the time the power of attorney was allegedly executed the scope of the entire um guardianship i'm not aware of and i don't believe it's in the record however if the court has no further questions the state would maintain that both counts should be affirmed thank you thank you all right very briefly um thank you oh try to be brief and with reasonable this isn't the question in this case if it was we would refer you to the benitez case which is out of this court that said that merely saying i believe that the signature was was correct is a reasonable hypothesis of innocence uh the statute that joshua i looked at the statute it mentions several different things true false forge or altered they all go all these things go to the merits of the document itself not by the to the process of authentic uh it's not even authentication of notre of notarize in it this is not to the process of it uh this isn't a question as to whether the document is valid and enforceable or it isn't it goes to when i present something to you i am verifying that the contents of what i'm presenting to you are not fraudulent they're not forged they're not inaccurate right now the process it it's kind of like rather like the mistake of law and mistake of fact i may i am not representing to you that what i'm giving to you is legally enforceable the notary has said that i'm not doing what i'm presenting when i what with this statue goes to is that the merits and judge logo you asked about changing the terms as did judge rothenberg if i am changing the merits of the document itself that's different here all i'm doing is i'm saying that the signature that's on there is correct was this issue raised to the trial court at the time of the judgment of acquittal with which issue the this issue because it's a subtle issue you're raising and i have to be frank with you i wasn't sure i really got this from reading your brief the issue of process versus document process versus instrument what was what was brought to the intention in the judgment of acquittal argument is that the signature is correct and that therefore the the the the convictions would not would not lie signature the notary signature the underlying signature underlying signature and that was really is what this is about how is that proven it wasn't proven that's the problem you mean its falsity was not proven not correct i thought you said it was correct if the state had presented a next video didn't they but they they testified i mean not they the the daughter of mr chrysler and the niece of the uncle right testified that there was a guardianship in place because they realized that they hadn't paid their real estate taxes and their property taxes and as a result they they decided to proceed with the guardianship so that they could you know be taken care of uh until they passed away and so she testified that there was a guardianship in place at that time so they didn't have the ability to execute any power of attorneys so even if assuming it's true that it's his signature it's not valid again that wasn't it wasn't presented in that way there was a there was a guardianship but my understanding of the guardianship was because there were all these bonds laying around we want to kind of get a handle on what's here what was not presented by the state as my recollection is is that because of the guardianship the the elderly man didn't have the power to sign the document at all that as i recall was not the art the state's argument this argument was actually rather interesting because the argument nowhere in here was there ever a handwriting expert that compared this man this elderly man's signature at one time with what's on the that was never there the state never really challenged other than a circumstantial type of argument that this was an authentic whether that it's his signature or not i don't know why you're placing so much importance on his signature he could have signed it ten years earlier it it's irrelevant whether he signed it or when he signed it it's when it's presented to the bank that that that your client has the authorization by him to cash it in his behalf which is the fraud suppose which is the false statement by her she's saying i have the authority by him to cash this and proof of that is this power of attorney which she presents which he knows to be false and we'll respond to you this way and i appreciate you all letting me talk a little over the time if the defendant didn't know that there was a guardian in place if the defendant had no way of knowing he could he could have signed it this could be his legitimate signature but that he never authorized her to cash it he signed it because he intended for somebody he trusted to cash it who wasn't going to keep ten thousand dollars could be any scenario it's her conduct in cashing something that she was not authorized by him to cash by this power of attorney that she knew to be false all i can do is take you back to the law the law is that she had to have known that this signature was false if she doesn't know even suggesting that there was a car in the argument would you would you agree that when she presented the power to the bank employee she knew it was not a duly notarized power and by duly i mean lawfully notarized power i would be first of all i would be in a better position to be able to to uh concede anything like that if i knew what her training was with regards to powers of attorney and uh here's why i say that when it came time for her to actually get this process going she called another bank employee and she said how do i do this and the bank employee said well you've got to get him to sign a power of attorney not you have to have it notarized not you have to have it notarized in the presence you have to go out and get a power of attorney and then present that to the bank so she may have been an officer so you would at least agree that the evidence in the light most favorable to the state is that what she presented to the bank employee was not a duly notarized document whether she knew it didn't know it shouldn't own it you agree it was not duly notarized it was not it was not valid it was not uh that's correct i mean if you go to the letter of this but we're talking about intent and you agree that without that notary without that power of attorney they could not cash those bonds yes however do i agree that she knew that no i don't agree with it so that's your issue the issue is knowledge that's real and that and that's in the statute when you look at the statute i know you will carefully look at the statute it goes to the merits of the document that's what it goes to and why doesn't the notary statute create a presumption that she would have to rebut the notary statute applies to the notary herself it doesn't apply to the person bringing the document to the notary if the state wants to prosecute the notary well that's a different question and they may have good grounds i don't know with regards to this there is no proof that the signature is inauthentic that it was forged there was no proof that that that they it took looking to the merits of the document itself that it was in any way change altered uh forge there is none of that if it turns out that the elderly man signed the document then uttering a forged instrument does not apply if it turns out that he signed the document and it accurately reflects his desire theft doesn't lie either thank you thank you