DATE: 20010122

DOCKET: C27621

COURT OF APPEAL FOR ONTARIO

CATZMAN, CARTHY and WEILER JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Erika Chozik, for the respondent

Respondent

• and -

MARK FISHER

Irwin Koziebrocki, for the appellant

Appellant

Heard: January 17, 2001

On appeal from the conviction imposed by Justice Bourke G.H. Smith dated April 28, 1997 and from the sentence imposed by Justice Smith dated June 4, 1997.

BY THE COURT:

[1] The appellant is a police officer whose duties included traffic patrol. He was charged with seven separate incidents involving making false accusations about traffic violations. He was found guilty of eight counts of forgery, six counts of attempt to obstruct justice and one count of breach of trust in relation to the issuance by him of a number of traffic tickets. He appeals his conviction.

The grounds of appeal concerning the trial judge’s reasons

[2] Despite Mr. Koziebrocki’s able argument, we are of the opinion that the trial judge’s reasons do not support the appellant’s contention that the trial judge used the evidence related to the two counts on which he acquitted the appellant to convict him on other counts. We are also of the opinion that, contrary to the appellant’s submissions, the trial judge took into consideration the appellant’s absence of motive in committing the crimes and that he drew inferences that were reasonably available on the evidence. It follows that the verdict was not unreasonable.

Reply evidence

[3] The appellant issued two traffic tickets in the name of Friedrich Keul. The appellant later acknowledged that the person driving the vehicle could not have been Friedrich Keul but alleged that it was his son, Udo, who was driving the vehicle at the time. The appellant admitted writing Friedrich Keul’s date of birth four times in the course of issuing the traffic tickets which he said he obtained from the vehicle’s ownership certificate. Friedrich Keul is in his mid-sixties, whereas his son, Udo, was 27 at the time. The appellant testified that he did not notice the discrepancy between the age on the certificate and the person in front of him because he was in a hurry to get to a riot at the Cineplex location at Vodden Road that needed back-up.

[4] The Crown called reply evidence intended to show that the call for back-up was made several minutes after the time when the appellant said he had finished writing the ticket. In our opinion, the trial judge did not err in permitting the Crown to call the reply evidence as the Crown could not have anticipated the appellant’s evidence as to his state of mind when he stopped the Keul vehicle.

The offences of fraud and breach of trust

[5] Section 122 of the Criminal Code provides:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person. [Emphasis added.]

[6] The appellant was convicted of both fraud and breach of trust. The convictions relating to fraud were stayed on the basis of the rule against multiple convictions as enunciated in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[7] The appellant submits that the offence of breach of trust by a public official was not made out. The appellant submits that one of the elements of breach of trust by a public official is proof that the act resulted in a direct or indirect personal benefit to the accused and, here, there is no evidence of any form of personal benefit. The authority on which the appellant relies for its submission that some form of personal benefit is an essential element of the offence is R. v. Perrault (1992), 1992 12782 (QC CA), 75 C.C.C. (3d) 425 (Que. C.A.), leave to appeal dismissed (1993), 77 C.C.C. (3d) vi. Perrault was relied on by this court in an endorsement, R. v. Rahn, [1994] O.J. No. 3745 (Ont. C.A.). The Crown advises that the issue of personal benefit was not argued in that case. The Crown also points out that in R. v. Church of Scientology (1992), 18 W.C.B. (2d) 87 (Ont. Gen. Div.), affirmed by this court (1997), 1997 16226 (ON CA), 116 C.C.C (3d) 1 at 90-93, the individuals obtained information by reason of their government positions and disclosed that information to unauthorized persons affiliated with the Church of Scientology. The individuals in question obtained no personal benefit. The benefit was to the religious organization to which they belonged.

[8] The position of the Crown is that s.122 is a codification of the common law and that Perrault, supra, misinterpreted the common law because historically the necessity of profit or benefit was not an element of the offence. See e.g. R. v. Bembridge (1783), 99 E.R. 679 (K.B.); R. v. Leblanc, [1979] Que. C.A. 417 ( C.A.); aff’d, 1982 169 (SCC), [1982] 1 S.C.R. 344.

[9] We do not find it necessary to resolve the very interesting legal issue of whether a personal benefit is an essential element of the offence of breach of trust. In the case before us, the appellant was also charged and found guilty of fraud and there is no issue that the elements of fraud have been made out. The appellant engaged in acts of dishonesty (namely, forgery) in the course of his public duties. These acts caused actual loss to some of the complainants or placed their pecuniary interests at risk by subjecting them to unnecessary court proceedings and the risk of conviction and fines for offences they never committed.

[10] We resolve any uncertainty by lifting the stay respecting the convictions for forgery and staying the conviction relating to the count for breach of trust. This would not affect the sentence in that the factual basis for the respective charges is identical.

[11] The appeal against conviction is accordingly dismissed.

Released: JAN 22 2001 Signed: “M.A. Catzman J.A.”

“J.J. Carthy J.A.”

“K.M. Weiler J.A.”