WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Not provided

Date: February 4, 2013

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— And —

Carlton Watson

Before

Justice Sandra Bacchus

Ruling delivered on: February 4, 2013

Counsel

J. Scott — Counsel for the Crown

B. Brody — Counsel for the Accused

Bacchus J.:

INTRODUCTION

[1] The defendant is charged with forty-six counts relating to his alleged involvement in a scheme to defraud insurance companies through a series of staged or fake motor vehicle accidents. As a result of these schemes, the majority of fraudulent claimants received money, rental vehicles, physiotherapy and other benefits. Other intermediaries, including the defendant, are alleged to have received money for their participation. Nine separate schemes are encompassed by the charges before the court. Committal for trial has been conceded in relation to eight of those schemes.

[2] The issue for determination is whether there is evidence before the court sufficient to commit the defendant to trial in relation to the fake accident purported to have occurred on August 24, 2010, (counts 36, 37, 39 and 40), identified by the accident report filed as Exhibit 1h in these proceedings, and also if there is sufficient evidence in respect of the transactions related to counts 14, 19, 24, 29, 38 and 45 for which crown seeks committal for the offense of attempt to obstruct justice contrary to section 139(2) of the Criminal Code.

[3] The following facts are conceded for the purpose of the preliminary inquiry:

• That the defendant at all relevant times was a police officer employed with the Peel Regional Police Service;

• That the defendant created the motor vehicle accident reports filed as exhibits 1a to 1i in these proceedings;

• That none of the accidents detailed in exhibits 1a to 1i ever happened as reported, and that all of these matters were staged or fake accidents;

• That the defendant was not involved in filling out any insurance claim related forms in relation to these staged accidents.

THE FAKE ACCIDENT OF AUGUST 24, 2010

[4] The defendant is charged with two counts in respect of frauds committed on York Fire and Casualty Insurance Company and Allstate Insurance Company respectively. In addition, the defendant is charged with one count of breach of trust in relation to creating and submitting a fraudulent motor vehicle collision report purporting it to be real in order that false insurance claims could be submitted; and one count of using a forged document, to wit the motor vehicle collision report, as if it were genuine.

[5] There is no issue in these proceedings that the defendant authored the motor vehicle accident report, exhibit 1h, which falsely reports the accident of August 24, 2010. In addition, Exhibit 1h bears the signature of a supervising sergeant and a stamp from the Peel Regional Police Service evidence that it was not only created by the defendant, but also submitted for review by the defendant to his superiors, consistent with the legitimate process outlined in the police directives relating to the investigation of traffic collisions, exhibit 3 in these proceedings.

[6] Charlene Chevers and Maxwell Owusu testified that they participated in the fraudulent scheme of August 24, 2010, and received money and/or benefits from their respective insurance companies as a result. Both Mr. Owusu and Ms. Chevers testified that they did not know each other and had never met or been aware of the defendant.

[7] Ms. Chevers and Mr. Owusu testified that they gave personal information including particulars of their driver's license and insurance to an unknown party in order to commit the fraud. Both Ms. Chevers and Mr. Owusu testified that they subsequently received a motor vehicle accident report from this unknown person which they each identified as a version of exhibit 1h. The version they received is consistent with the version given to drivers by the police in a true collision. There is evidence that both Ms. Chevers and Mr. Owusu utilized the accident report they received as a tool in perpetrating the fraud, either handing it directly to insurance company officials or paralegals assisting in processing their claims, or by referring to information contained in the document in the process of making application for their respective claims.

ANALYSIS

[8] Counsel for the defendant argues that although there is evidence that the defendant created the forged document exhibit 1h, there is no evidence that the defendant passed on this document to the unknown third parties in this case or to the fraudulent claimants. As such, counsel for the defendant argues that there is insufficient evidence to connect the defendant to the fraudulent scheme of August 24, 2010.

[9] The test for committal requires that where there is direct evidence adduced on all elements of an offense the case must proceed to trial even if a defense exists on the evidence. In the instance of circumstantial evidence the preliminary hearing judge may engage in a limited weighing of the evidence. However this weighing of evidence does not apply to issues of credibility that remain the exclusive purview of a jury. If conflicts arise of a testamentary nature, they should be left to be resolved by the jury. (R. v. Sheppard, 2 S.C.R. 1067; R. v. Acuri, 2001 SCC 54, S.C.J. No. 52 (SCC))

[10] Where reasonable inferences capable of supporting the crown's theory are available on the evidence, it must be left to the trier of fact to consider that evidence. (R. v. Charemski, 1998 , 123 C.C.C. (3d) 255 S.C.C.)

[11] In my view, considering the totality of the circumstantial evidence in this case there is evidence upon which a reasonable jury properly instructed could conclude that the defendant intentionally circulated Exhibit 1H such that it passed from him to an unknown party and into the hands of the fraudulent claimants Owusu and Chevers. This inference I find is not speculative or tenuous but is reasonably available on the evidence as follows:

• The evidence that the motor vehicle accident report is a police generated document from which a reasonable inference can be drawn that the form is exclusive with limited circulation to the public;

• The detailed nature of the information the defendant inputted in exhibit 1h which appears to have accurately included the personal details of the drivers and their vehicles, as well as the names, phone numbers and gender of the passengers identified by Ms. Chevers as her friends, and by Mr. Owusu as the names provided by the unknown party in relation to his vehicle. As this information is entirely consistent with the information exchanged between Chevers, Owusu and the unknown third party for the preparation of the report the evidence supports the inference that the defendant was intimately connected with this fraudulent transaction;

• The timing of the defendant's dealing with exhibit 1h in relation to the timing of the fraudulent activity; the defendant signed and submitted exhibit 1h to his supervising sergeant on August 28, 2010. According to the evidence of the insurance bureau investigation Exhibit 6, the false claim activity in this matter commenced as of August 25 and August 31, 2010. The timing of these events is further circumstantial evidence capable of supporting an inference that the defendant had an active role in facilitating exhibit 1h to assist in making these claims;

• Ms. Chevers' evidence that she received a yellow copy of the exhibit 1h, consistent with receiving a carbon product of the original, strongly supporting the inference that it came directly from the originator, the defendant;

• Ms. Chevers' evidence that she received a traffic ticket for failing to yield along with the accident report. The provincial offenses ticket, like the motor vehicle accident report, is a document generated by the police, Ms. Chevers' evidence in this regard is further evidence consistent with the inference that the documents she received emanated directly from the defendant with his knowledge and consent;

• The evidence of Wayne Isaacs that he and the defendant discussed the use that would be made of the fake accident reports in relation to fraudulent insurance claims months before the defendant created the false report of August 24, 2010, consistent with an inference that the defendant knew how the motor vehicle accident report in this instance would be used.

[12] In my view, the cumulative effect of the circumstantial evidence leads to a reasonable inference that the defendant not only received the information necessary to create exhibit 1h from the unknown third party, but that he in turn provided or circulated it in such a way that it would get into the hands of the unknown party so that it could be passed to Ms. Chevers and Mr. Owusu.

[13] I am satisfied that there is sufficient evidence before me to commit the defendant to stand trial in respect of counts 36, 37, 39 and 40 of the information.

ATTEMPT TO OBSTRUCT JUSTICE (Counts 14, 19, 24, 29, 38 and 45)

[14] It is the position of the defense in relation to the offense of attempt to obstruct justice that absent evidence connecting the Provincial Offences Act ticket information referred to in the motor vehicle accident reports to legal proceedings whether criminal, civil, or regulatory, there is insufficient evidence to commit the defendant to trial in relation to these counts as there is no evidence that "the course of justice" has been obstructed. Further, it is submitted that since the investigation pertaining to these provincial offense tickets was false from inception, there was no investigation that could have been interfered with such that the course of justice could have been compromised.

[15] In this case there is no evidence of any formal proceedings commenced, lost, or abandoned as a result of the issuance of any provincial offenses act ticket referenced by the defendant in exhibit 1c, 1d, 1e, 1f, 1h and 1i. With the exception of the evidence of the failing to yield ticket given to Ms. Chevers, there is no evidence that the other fraudulent claimants pertinent to the allegations of attempt obstruct justice were aware of any provincial offenses ticket for which they were deemed responsible.

[16] Further, there is no evidence that actual physical provincial offenses tickets were submitted by the defendant for a sergeant's review, or for processing to the courts, or that they were ever properly issued. Counsel for the defendant's submission of 'no evidence', is predicated on the position that because no lawful or legitimate investigation or proceeding existed in this case, the course of justice could not be perverted. I disagree with this interpretation of the law and the evidence.

[17] It is clear that the expression "the course of justice" in s. 139(2) has a broad meaning which may encompass criminal, regulatory or civil proceedings as well as the investigatory stage of a matter. As per Martin, J. in Regina v. Spezzano, 34 C.C.C. (2d) 87 (Ont. C.A.), p.91:

The expression "the course of justice" in s. 127(2) [now s. 139(2)] includes judicial proceedings existed or proposed but is not limited to such proceedings. The offence under s. 127(2) also includes attempts by a person to obstruct, pervert or defeat a prosecution he contemplates may take place, notwithstanding that no decision to prosecute has been made.

[18] The Supreme Court of Canada clarified this principle in Regina v. Wijesinha, 100 C.C.C. (3d) 410 (S.C.C.), holding that:

In the ordinary course of events, one who perverts the course of an investigation also perverts the course of justice... It follows that to mislead knowingly during the first step of an investigation as surely perverts the course of justice as would making a bribe to a witness to change his or her testimony during a trial. The only difference is that, in the first example, the crime is committed at the outset of the proceedings and, in the second example, towards the end. (p.421)

[19] The evidence called in this inquiry supports the inference that provincial offenses proceedings are of significance to the police investigation in relation to traffic collisions. Sergeant Davis Baxter, a superior officer to the defendant and an individual to whom the defendant submitted exhibit 1d, testified that in effect there is an expectation in policing that someone is almost always at fault in traffic collision investigations.

[20] The compelling inference available on the totality of the evidence is that the defendant inserted provincial act ticket information into the motor vehicle accident reports particularly for the eyes of his police superiors in order to legitimize the appearance of these investigations to avoid his own detection. This inference is amplified by the fact that there is no evidence that the insurance companies had been made aware of traffic charges associated with any of the fraudulent claimants, and there is no evidence that the nature of the charges fabricated by the defendant would have any bearing on the insurance claims.

[21] Although there is no evidence that a formal investigation into the defendant's actions had commenced or contemplated at the time of these alleged misdeeds, there is a reasonable inference available on the evidence that the defendant contemplated an investigation into his own misdeeds and sought to impede it.

[22] Compounding the degree to which the actions of the defendant sought to impede the course of justice, is the fact that the defendant's misrepresentations were made to senior police officers who were not only responsible for overseeing the defendant's conduct to ensure lawful and administrative compliance with procedures, but who also had a duty to the public in the investigation and detection of unlawful conduct.

[23] The defendant represented to his superiors that provincial offense related proceedings had commenced against particular drivers, when in fact they had not, in an effort to impede an investigation. Evidence which in the circumstances of this case constitutes an attempt to pervert the course of justice.

CONCLUSION

[24] In respect of the fake accident of August 24, 2010, counts 36, 37, 39 and 40, the defendant is ordered to stand trial. The defendant will be discharged on counts 14, 19, 24, 29, 38 and 45, as charged and ordered to stand trial on 6 counts of attempt to obstruct justice contrary to s. 139(2) of the Criminal Code.

Reasons released: February 4, 2013

Signed: Justice Sandra Bacchus