COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Posthumus, 2020 ONCA 760

DATE: 2020-12-02

DOCKET: C64858

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jan Posthumus Appellant

Richard Posner, for the appellant Andrew Cappell, for the respondent

Heard: October 8, 2020 by video conference

On appeal from the convictions entered by Justice S. Ford Clements of the Ontario Court of Justice on June 23, 2017, and from the sentence imposed on February 21, 2018.

REASONS FOR DECISION

[1] The appellant was a Transit Enforcement Officer employed by the Toronto Transit Commission. He was convicted of offences arising from a practice of issuing fraudulent Provincial Offence Tickets to persons for offences that had not been committed. In every case, the tickets were issued to persons of no fixed address who habitually violated TTC bylaws. The tickets were never served on the persons said to have committed the offences, and the persons to whom the tickets were ostensibly issued were never made aware of either the tickets or any subsequent judicial process.

[2] The appellant was alleged to have issued 27 fraudulent tickets on seven dates in November and December 2012. He was convicted of one count each of fabricating evidence and obstruction of justice related to two of those tickets. Two of his co-accused were similarly convicted and two were acquitted. He was sentenced to a 14-day intermittent sentence in addition to a three-month conditional sentence. He appeals against conviction and seeks leave to appeal against sentence.

[3] For the reasons that follow, the conviction appeal is dismissed. Leave to appeal against sentence is granted, and the sentence varied to time served.

The Conviction Appeal

[4] In 2012, the TTC began investigating Transit Enforcement Officers believed to be engaging in “time theft” by pursuing personal business at times when they were supposed to be carrying out their duties for the TTC. During the course of the investigation, TTC officials discovered certain Transit Enforcement Officers had been issuing fraudulent tickets. The fraudulent tickets were believed to have been issued as a means to provide cover for the officers’ time theft. The officers’ practice was to issue tickets to homeless persons known to habitually violate TTC bylaws, alleging fictitious offences. The persons alleged to have committed the offences typically received up to 700 legitimate tickets in a year and would likely remain unaware of the additional fraudulent tickets. The appellant’s misfeasance came to light through this investigation.

[5] On December 9, 2012, the appellant nominally issued two tickets to Francis Toney, of no fixed address, for soliciting and loitering at Dundas Station. Both the tickets and the appellant’s memo book (a log of activity the Transit Enforcement Officers were required to keep) record the time of the offences as 9:00 a.m. There was evidence, however, that the appellant was not present at Dundas Station at that time and therefore could not have observed the offences. Not only did the appellant not appear on Dundas Station surveillance video at the relevant time, but seven minutes after he was to have observed the offences, he was captured on surveillance video at a Lowe’s hardware store parking lot 10 km away. Toney was deemed not to dispute the charges and was convicted of the two offences, seemingly because she was unaware of the tickets and the subsequent hearing.

[6] On December 17, 2012, the appellant nominally issued a ticket for loitering to a person named Salem El Ghandour, of no fixed address, at Queen Station at 7:02 p.m. Again, the appellant did not appear on Queen Station surveillance video at that time. Instead, surveillance officers observed the appellant attending a TD Bank near Yonge Street.

[7] That same day, the appellant nominally issued a ticket to a person named Joseph Delaney, of no fixed address, for loitering at College Station at 7:57 p.m. Both the ticket and the notation in the appellant’s memo book indicated the time of the offence as 7:57 p.m. Again, the appellant was under surveillance at that time, and was observed elsewhere.

[8] On appeal, the appellant repeated his argument from trial, that the circumstantial evidence against him was inadequate to ground a conviction. He argues that the trial judge erred in concluding that he fabricated tickets, when a competing inference inconsistent with guilt was available: that although the appellant had not personally observed the commission of the offences in question, the offences had been committed as described, other officers had observed the offences and advised the appellant, and the appellant then issued the tickets on information and belief. The defence theory was that the officer or officers who provided the information – whoever they may have been – were simply passing on information about real occurrences in order to help the appellant meet his monthly Provincial Offence Ticket quota.

The erroneous inference

[9] As stated above, the case against the appellant was circumstantial. The trial judge was persuaded on the totality of the evidence that the appellant was not at the TTC stations at the time the offences were said to have occurred. The appellant did not dispute this on appeal. He argued, however, that the circumstantial evidence is reasonably capable of supporting an inference other than guilt, and it was therefore an error of law to have found him guilty: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[10] The appellant’s argument rested on the theory that an officer did not have to personally observe the commission of the offence in order to issue a ticket. The pre-printed text of the Certificate of Offence required the issuing officer to state that he or she “believe and certify” that an offender committed an offence at a particular time and location. The form thus appeared to allow for an attestation that the officer believed that an offence had taken place, based on information received from another officer who had actually observed it.

[11] Accordingly, the appellant argued that there was a possibility that offences had in fact been committed at the time and place recorded on the Certificate of Offence, by the persons named, and that this information was communicated to the appellant by other officers who had in fact observed it, so that the appellant could issue valid tickets to increase his Provincial Offence Ticket numbers for the month.

[12] The appellant argued that as this inference is available on the evidence it is therefore capable of raising a reasonable doubt. In order to negate this inference, he argued, the Crown had to prove not just that the appellant was not present at the stations when the offences were said to have been committed, but that the offences themselves could not have taken place because, for example, the named offenders were not at the relevant stations at the time. The appellant argued that the circumstantial evidence therefore stopped well short of proving that the offence did not happen, and therefore well short of proving the appellant’s guilt beyond a reasonable doubt.

[13] We do not agree that the trial judge erred in finding that the competing inference did not rise above mere speculation. Accordingly, it did not raise a reasonable doubt that the appellant fabricated tickets and did so with the intent that the tickets be used in a judicial proceeding as alleged. The trial judge acquitted the appellant of charges where it appeared that the appellant may have been at the station but was not captured on surveillance video. But where the evidence established that the appellant was not at the station at the relevant time, there was no plausible explanation other than fabrication. Of critical importance to the trial judge was the evidence from the tickets themselves and the corresponding entries in the appellant’s memo book. The trial judge reasoned that the appellant was a trained constable who was required to make accurate notes on both the tickets and the memo book. Had the appellant issued tickets at a time subsequent to when he himself had observed the offence, or had issued the ticket based on information and belief, he would have noted this.

[14] The trial judge held that there was no evidentiary basis to support an inference that the tickets were issued based on information and belief. The trial judge had two reasons for this conclusion. First, there was no evidence that issuing tickets based on information and belief was a practice of the Transit Enforcement Officers. Although there was evidence that some officers believed the wording of the pre-printed text on the ticket allowed for tickets to be issued based on information and belief, there was no evidence that any officer had ever done so. Second, there was no evidence to elevate the bare possibility that the appellant had written the tickets on information and belief above mere speculation. To the contrary, the trial judge held that if the appellant had issued tickets based on information and belief, as a trained constable he would have noted this on both the ticket and in his memo book.

Misapprehension of evidence

[15] On appeal, the appellant argues that the trial judge misapprehended the evidence that the appellant says supports the inference. That evidence is the testimony of Staff Sgt. Mark Russell and Sgt. Paul Manherz, and the co-accused Michael Schmidt. The appellant argues these three witnesses supplied evidence that issuing tickets based on information and belief rather than personal observation was an authorized practice.

[16] We do not agree. The trial judge did not misapprehend the evidence. This evidence went no further than establishing that issuing a ticket on information and belief was theoretically possible. None of the witnesses testified to ever having done it themselves, or having been aware of anyone else having done it. Neither was there any evidence to suggest that the appellant had done so. There was, however, evidence from which the trial judge could draw the inference that he had not: the appellant had made no notation to that effect on the tickets or in his memo book. Additionally, Sgt. Manherz stated that if he were to issue a ticket based on information and belief, he would note it on the ticket itself.

[17] The appellant argues that the deceptions in the appellant’s memo book – for example, stating he was at the station when he was actually at Lowe’s – were equally consistent with lying about his whereabouts while nevertheless having issued the tickets based on information and belief. Simply recording that a ticket was based on information and belief would not have enabled him to conceal his fraud against his employer. However, the inference that the appellant misstated his whereabouts with the intention of furthering his criminal purposes was open to the trial judge, and there is no basis on which we would interfere with it.

[18] The appeal against conviction is therefore dismissed.

The Sentence Appeal

[19] The appellant was sentenced to a three-month conditional sentence for the obstruction of justice conviction, which he has already served, and 14 days’ imprisonment for fabrication of evidence, to be served intermittently. He has already served three of those days. He seeks leave to appeal against sentence and submits that he should not have been subjected to a custodial term.

[20] The appellant argues that his moral culpability is significantly less than that of his co-accused, who were his seniors in rank and whose offences spanned the full course of the 80-day investigation. In contrast, the appellant was convicted of four offences committed over a nine-day period.

[21] When the appellant was sentenced, conditional sentences were not available for the offence of fabricating evidence under s. 742.1(c) of the Criminal Code. That has changed as a consequence of this court’s decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal requested, [2020] S.C.C.A. No. 311. In light of this and given the collateral employment, professional, and mental health consequences of the convictions on the appellant, we grant leave to appeal sentence, allow the sentence appeal, and substitute a sentence of time served on the conviction for fabricating evidence.

Disposition

[22] The appeal against conviction is dismissed. Leave to appeal sentence is allowed, the appeal of sentence is allowed, and a sentence of time served is substituted for the conviction for fabricating evidence. Given the disposition, the appellant is not required to surrender into custody, as per the terms of his bail order.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“B.W. Miller J.A.”