Court of Appeal for Ontario

Date: 2017-04-28 Docket: C60978

Judges: Weiler, Feldman and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Carlton Watson Appellant

Counsel: Paul Alexander, for the appellant Deborah Krick, for the respondent

Heard: April 25, 2017

On appeal from: The conviction entered by Justice John R. Sproat of the Superior Court of Justice on February 13, 2015, with reasons reported at 2015 ONSC 710, [2015] O.J. No. 715, and from the sentence imposed on September 14, 2015.

Endorsement

A. Introduction

[1] The appellant, Carlton Watson, was a Peel Regional Police ("PRP") officer. He was charged with 46 offences related to fraud, making false documents, breach of trust and obstruction of justice. The charges related to nine motor vehicle accident reports ("MVARs") prepared by Watson in 2010. These reports related to accidents that in fact never occurred and resulted in insurers paying claims and incurring costs totalling over $1,000,000.

[2] At trial, the appellant conceded the actus reus of the offence. The issue was whether Watson was a knowing participant in the fraud scheme.

[3] The trial judge concluded that he was and convicted him on all but six counts. He was sentenced to five years' imprisonment.

[4] In relation to his conviction and sentence, the appellant raises the following grounds of appeal: (1) the trial judge engaged in speculation in finding that the appellant participated in the fraud; (2) the trial judge failed to properly apply the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524; and (3) the trial judge erred in imposing a five-year sentence.

B. The Conviction Appeal

[5] At the outset of his oral submissions, the appellant indicated that he was not submitting that the verdict was unreasonable. The appellant submits, however, that in convicting him, the trial judge engaged in impermissible speculation in three respects.

[6] First, the appellant submits that the trial judge engaged in speculation with respect to the tickets issued under the Provincial Offences Act, R.S.O. 1990, c. P.33. Of the nine MVARs, eight indicate that a ticket was subsequently issued. The Crown's position was that tickets were issued as part of the fraud scheme because it would look suspicious if no one involved in the accidents was charged.

[7] The PRP procedure for processing the tickets was that officers would leave the ticket forms in a basket at the station at the end of their shift. The tickets would then be entered into the computer system for processing. Watson testified that he intended that all of the tickets he issued be processed, and so he would have followed the PRP's usual procedure. The trial judge rejected his evidence. Only one ticket was entered into the system. This was a ticket that was issued to a person who was initially involved in setting up the fraud, and he was convicted in absentia. The trial judge was entitled to draw the inference that the appellant issued provincial offences tickets but deliberately did not submit them into the court system because he was a participant in the fraud.

[8] The appellant's second submission is that the reason the trial judge gave for rejecting the appellant's evidence as to how he filled out the MVARs was speculative.

[9] The Crown's position at trial was that the short gap recorded on the MVARs between the time of the collision and the time it was reported – between zero and fifteen minutes – was chosen deliberately to make it appear each time as if the appellant was at the scene of the accident (when, in fact, he was not). The appellant denied this suggestion and testified that he did not notice the peculiarity about the times, as he did not fill out the entire MVAR at the same time. The trial judge rejected this evidence and found that, logically, one would fill in the boxes one after the other on the form. In rejecting Watson's evidence on this issue, the trial judge did not engage in speculation, but merely used logic and common sense.

[10] Third, the appellant submits the trial judge engaged in impermissible speculation in rejecting the appellant's evidence that he was prepared to provide an MVAR to the Blackwoods based only on their say-so, with respect to the collision involving Clifton and Conrad Blackwood. The trial judge rejected the appellant's evidence regarding the Blackwood collision on the basis that he was aware that the Blackwoods, who were twins, had committed immigration fraud by travelling on one passport.

[11] The Crown agrees that, standing alone, this reason was not sufficient to reject the appellant's evidence in relation to these counts but submits that this was only one of the reasons the trial judge gave. We agree with this submission. At para. 97 of the trial judge's reasons, he summarized his findings of fact, based only on the appellant's own evidence together with the circumstantial evidence, and without relying on the evidence of the other participants in the scheme, including Clifton Blackwood. The trial judge found that the appellant had prepared nine MVARs without attending the scene or speaking to the drivers and passengers; the appellant's notes relating to the nine MVARs were intentionally deceptive; the appellant had provided misleading information to dispatch resulting in the Unit History being inaccurate as to his location at and around the time of the purported accidents; and, in most cases, the at fault driver had been charged, but the tickets were intentionally not submitted to facilitate the fraudulent scheme and lessen the risk of detection. Reading the trial judge's reasons as a whole, therefore, the immigration fraud was only one of the many reasons the trial judge identified for rejecting the appellant's testimony respecting this count.

[12] For all of these reasons, the appeal as to conviction is dismissed.

C. The Kienapple Principle

[13] The appellant submits that the trial judge erred in not applying the Kienapple principle to the convictions for fraud and forgery because the fraud charges particularized the use of a forged MVAR in committing them. In our opinion, this submission does not distinguish this court's decision in R. v. Dwyer, 2013 ONCA 34, 301 O.A.C. 191, where, at para. 6, Rosenberg J.A. stated:

In my view, the Kienapple rule does not apply. The rule precludes multiple convictions for different offences where there is both a factual and legal nexus connecting the offences. While there is a close factual nexus, the legal nexus is missing. The fraud charge and the charges of using forged documents have different elements and describe different criminal wrongs. [Citations omitted.]

[14] Similarly, the appellant's argument that the Kienapple principle should have been applied, even though there were different victims involved in each of the fake accidents, finds no support in law and is contrary to R. v. Kinnear (2005), 199 O.A.C. 323, at para. 38.

[15] Accordingly, we would not give effect to this ground of appeal.

D. The Sentence Appeal

[16] This was a very serious offence. A significant penitentiary term was required despite the appellant's mitigating circumstances. The fact that the appellant, a police officer who is sworn to uphold the law and protect the public, abused his office by engaging in an organized fraudulent motor vehicle accident scheme is a significant aggravating factor. The five year sentence imposed was not demonstrably unfit. Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

Karen M. Weiler J.A. K. Feldman J.A. Grant Huscroft J.A.