R. v. Watson, 2015 ONSC 710

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Watson 2015 ONSC 710

COURT FILE NO.: CR (P) – 13-0097

DATE: 20150213

B E T W E E N:

HER MAJESTY THE QUEEN

John Scott, for the Crown

-and-

CARLTON WATSON

Susan von Achten, for the Defendant

HEARD: January 14, 15, 16, 19-23, and 26-29, 2015

REASONS FOR JUDGMENT

Sproat, J

INTRODUCTION AND OVERVIEW

1Carlton Watson is a Peel Regional Police (“PRP”) officer, under suspension, charged with 46 offences related to fraud, making false documents, breach of trust and obstruction of justice. The charges relate to nine motor vehicle accident reports (“MVARs”) prepared by Cst. Watson in 2010. These reports resulted in insurers paying claims and incurring costs totalling over $1,000,000. MVAR #1 related to a single vehicle accident that occurred, although with one vehicle occupant and not four as stated on the MVAR. MVARs #2 to #9 describe accidents that never occurred.

2Cst. Watson joined the PRP in 1992 and prior to 2010 had never prepared a MVAR without attending the scene. Cst. Watson admitted that he prepared the nine MVARs in 2010 without attending the scene. Cst. Watson testified that he relied upon information received from Wayne Isaacs, a tow truck driver he regarded as a friend and, in one case, information from a childhood friend, Clifton Blackwood. In seven cases he admits that he did not speak to any of the drivers or passengers. In some cases, the MVAR indicates that a traffic ticket was to be issued to the at fault driver. These tickets are the basis for the obstruction of justice charges.

3The Crown alleges that four MVARs were prepared for and paid for by Isaacs; three MVARs were prepared for and paid for by Nabil Murad (“Nabil”), a mutual acquaintance of Isaacs and Cst. Watson; and two MVARs were prepared for and paid for by persons who cannot be identified. Cst. Watson testified that eight MVARs were prepared at the request of Isaacs and one at the request of Clifford Blackwood.

4The Crown alleges that Cst. Watson was paid cash, typically $6,000 per MVAR, and well understood the MVARs were for fake accidents and to be used to defraud insurers. The defence position, as Cst. Watson testified to, is that he prepared the MVARs as favours to friends, believing the accidents to be real and the information accurate. At no time was he paid for a MVAR.

THE EVIDENCE

Introduction – Background

5As of 2010 Isaacs operated a tow truck and was the towing manager for First Canadian Towing. Cst. Watson and Isaacs have known each other since the 1990s and regarded each other as friends.

6As of 2010 Isaacs was also the 50 percent owner of a physiotherapy clinic called Brampton Total Rehab. He testified there was a practice whereby clinics would pay $2,500 to $3,000 for the referral of a patient. The patient would also be referred to a lawyer and perhaps to an assessment clinic and they would share in the cost of the referral fee paid by the clinic.

7From time to time Cst. Watson needed a rental car. Isaacs introduced him to Alex Murad who owned a car rental company called Assured. Cst. Watson also came to know Alex’s brother Nabil, and his father George. Assured obtained rental referrals from tow truck drivers and had a lounge area and vehicle washing facilities drivers could use.

8Cst. Watson testified that Isaacs complained to him that certain officers were directing him to leave accident scenes even when he was the first or second tow truck driver on scene which was unfair. Cst. Watson told him he could not get involved with other officer’s decisions. Isaacs then asked if he could call Cst. Watson directly if he came across an accident. Cst. Watson testified he told Isaacs he could call and he would deal with the accident if he was not busy. Cst. Watson testified that traffic unit work, consisting of issuing tickets, was boring and it was not unusual for him to volunteer to attend accidents or assist other officers.

9Cst. Watson testified that he told Isaacs not to tow vehicles away from the accident scene and that he should just call him to the scene. Isaacs often responded by just laughing things off. There were subsequent occasions in which Isaacs called him to do a report on an accident after the vehicles had been removed.

10In 2010 he prepared reports without attending the scene only at the request of Isaacs and on one occasion Clifton Blackwood. In his examination-in-chief, Cst. Watson said he could not recall specifics of many of the MVARs because he had prepared so many over his career. Essentially he was accepting that the MVARs he prepared for Isaacs, without attending the scene, were those testified to by the witnesses as he could not recall the details of all the MVAR requests by Isaacs. Cst. Watson testified that in some cases when he wrote tickets for these MVARs he relied upon Isaacs to serve them on the driver charged. Cst. Watson characterized this as “poor judgment” on his part. He also relied upon Isaacs as to how to list the severity of any injuries on the MVAR.

11When Cst. Watson called dispatch and simply asked for an accident number to use, dispatch would enter into the computer that he was on scene. He prepared the MVAR before his police notes. When he prepared his police notes he may have reviewed the Unit History on the computer and copied down the “10-7”, meaning “on scene”, time from there.

12The top part of a MVAR records the time of the accident, the time it was reported, the accident number and particulars of the drivers, vehicle owners and insurers and the number of occupants of each vehicle. A copy of this portion is provided to the drivers. This information is required to process claims with insurers. The bottom portion contains a diagram of the accident, whether there are witnesses, whether there are injuries, where the vehicles were taken and what charge, if any was laid.

13Cst. Watson testified, in cross-examination, that he knew insurers sometimes requested a MVAR to make sure claimants did have an accident. Beyond that he did not know what use insurers made of MVARs.

14Cst. Watson was asked why he stored his notebooks in his vehicle and not in a secure area at the station. He said his truck was safer as there had been thefts from duty bags at the station and senior officers could open the secure area. Cst. Watson continued, “It’s a really long story with myself and Peel. I know they have it in for me. I was not looking to give them any reason to come at me.”

15I will discuss the nine MVARs under headings listing the drivers and total number of vehicle occupants and make reference to the evidence of witnesses related to each. While many of the drivers and witnesses testified, their evidence primarily related to establishing that while a MVAR was prepared no accident in fact occurred corresponding to MVAR #2 to #9. The defence did not challenge this evidence and I have no difficulty in being satisfied beyond a reasonable doubt that none of these accidents occurred. There were a number of recurring issues. I will address those issues when they first arise and not repeat them in discussing subsequent MVARs.

16All PRP vehicles have GPS tracking devices. The Crown introduced evidence as to where Cst. Watson’s vehicle was physically located at and around the time the MVARs indicate the accident occurred and the time the officer arrived on scene or the accident was reported. For reasons I will later explain, I find the GPS evidence to be accurate.

17The PRP has a Directive on Vehicle Towing which includes that officers not prefer any particular towing service. Cst. Watson testified that while directives are routinely circulated to officers he had no knowledge of the existence of this directive.

18I will then review evidence:

a) that most of the traffic tickets Cst. Watson recorded in the MVARs as being issued were never entered into the police computer system and so were never processed through the court system.

b) concerning Cst. Watson’s report that his police notebooks for the period October 30, 2009 to September 19, 2010 had been stolen.

c) of the amounts paid out, and other costs incurred by insurers in reliance upon the fact that an accident had occurred as indicated in the MVARs.

MVAR #1 – February 2, 2010 – Clarke (Four Occupants)

19Isaacs testified that on February 10, 2010 there were icy road conditions. He received a call from Kevin Clarke, whose vehicle had slid off the road. He towed the vehicle to First Canadian. The next day Clarke called saying he needed an accident report. It happened that Cst. Watson was at First Canadian at the time and Isaacs asked if he could prepare a report. Cst. Watson agreed and Isaacs provided him with all the information necessary to do the report. When the report was ready, Cst. Watson said Isaacs would have to pay for it.

20In order to be able to afford to pay for the repairs for the Clarke vehicle and also make a payment to Cst. Watson, Isaacs testified that it was necessary for him to add passenger names to the accident report. Clarke agreed to participate. Isaacs paid Cst. Watson approximately $1,000 in cash for this report.

21Cst. Watson testified that Isaacs called him and said that Clarke had run off the road in an accident. Isaacs asked if he could prepare a report and he told him that was not a problem. He prepared a report based on what Isaacs told him.

22In cross-examination Cst. Watson was asked to agree that his police notes regarding the Clarke accident were deceptive in recording a “R.C.” (Radio Call) at 12:40 and that he was he was “10-7” (meaning “on scene”) at the Clarke accident at 12:45. He denied this was deceptive, explaining that the notes were just for him, in order to refresh his memory. Cst. Watson said he was not going to inquire of Isaacs if the accident really happened at the time he said.

23Cst. Watson was also asked about his note that Clarke, “Stated he was travelling north bound McVean when he hit ice and started skidding”. Cst. Watson denied this was deceptive, again because the notes were for him.

24Cst. Watson was also directed to the fact the MVAR indicated the accident occurred at 12:30 and he received the report of it at 12:45. The gap between these events was a recurring issue which I will address now. The MVAR form has a box to record the time of the accident and the time the officer arrived at the scene or received a report of the accident. In the nine MVARs the gap between the time of accident, and the time a report was received, was recorded by Cst. Watson as 0 to 15 minutes.

25In relation to all MVARs, Cst. Watson testified that he recorded accurately what Isaacs (or in one case Blackwood) told him was the time of the accident. He also recorded accurately the time he received the report from Isaacs or Blackwood. Cst. Watson agreed that in hindsight the timing did not make sense in that Isaacs could not attend an accident, get the vehicle towed, record all the information for up to 10 occupants, and contact Cst. Watson within 15 minutes. Cst. Watson testified, however, that he had no reason to correlate the times and no alarms went off in his mind that there was something wrong.

26Cst. Watson acknowledged that even in Provincial Offences cases, police notes are sometimes disclosed to the defence. Cst. Watson testified that if he had been called to court on any of these matters he would have been truthful. He would have explained the source of his information and acknowledged that he had not actually attended the scene or, with two exceptions, spoken to any of the drivers or passengers.

MVAR #2 – February 17, 2010 – Murad and Wilkinson (Eight Occupants)

27Nabil testified that he knew Wilkinson through his wife’s uncle. Wilkinson wanted to make money in a staged accident. The original plan was to stage the accident on a roadway and then call the police. They went out, with fake drivers and passengers, but became scared and called it off. (Pavo Bartulovic, one of the passengers, testified and confirmed that he had gone with Nabil and others to the original planned location of the staged accident on a roadway but it was called off.)

28Nabil further testified that Isaacs told him he could obtain a MVAR from Cst. Watson. He then spoke to Cst. Watson at the Assured offices and he said he would prepare a report but told him to keep it between themselves. He paid Cst. Watson $5,000 for the MVAR. Nabil testified that he and his brother-in-law Steven crashed the vehicles to cause damage consistent with the MVAR.

29Isaacs testified that at the request of Cst. Watson, he obtained from Nabil and delivered to Cst. Watson a photocopy of a driver’s licence, ownership and insurance with a note written on the bottom listing the people in the vehicle and who was at fault.

30Cst. Watson testified that Isaacs called and told him Nabil’s father George had an accident and needed a MVAR. Cst. Watson initially drove to what he understood was the accident scene but no one was there. He then went to Assured and Nabil translated for his father who barely spoke English. Cst. Watson prepared a MVAR based on this information and charged Wilkinson under the Highway Traffic Act with failing to yield. He left the ticket for Wilkinson at Assured because he understood he was going there later to get a rental vehicle.

31In the MVAR, Cst. Watson noted that Driver 2, being Wilkinson, “Stated he didn’t see the other vehicle as he drove out of lot,” and that a ticket was issued to him.

MVAR #3 – February 25, 2010 – Debrou and Mason (Ten Occupants)

32Isaacs dealt directly with the drivers who provided him with their driver’s licence and insurance information as well as the names and particulars of their passengers. He provided this information to Cst. Watson and identified the driver to be found at fault, but did not suggest a location for the accident. He paid Cst. Watson $3,000 per vehicle for a total of $6,000.

33Cst. Watson testified he had no specific recollection of this MVAR.

MVAR # 4 – March 8, 2010 – Williams and Ekoma (Eight Occupants)

34Isaacs was connected with Williams through his friend, Lee Middleton. He was connected with Ekoma through his nephew, Cody. Middleton and Cody provided the information regarding the passengers. Isaacs provided all of this information to Cst. Watson and paid him $3,000 per vehicle for a total of $6,000.

35Cst. Watson testified he had no specific recollection of this MVAR. Cst. Watson’s MVAR recorded the accident as occurring at 12:00 and him receiving the report at 12:15. Computer dispatch records prove that Cst. Watson sent a message at 12:46:

CAN I PLS HAVE A NUMBER FOR A PD I’M TAKING CARE OF AT AIRPORT/CLARK TWO VEH ALL 10-4, HAS BEEN CLEARED UP JUST NEED #

36Cst. Watson, according to the GPS, was near but not at the Airport-Clark intersection at 12:46. Cst. Watson denied that this message suggested he was actually on scene dealing with the accident.

MVAR # 5 – April 16, 2010 – Oreskovic and Williams (Nine Occupants)

37Isaacs was connected with Oreskovic through a friend, Linda, and connected with Anissa Williams who is the sister of Tyra Williams. Isaacs testified he paid Cst. Watson $3,000 per vehicle, for a total of $6,000.

38Cst. Watson testified that this sounded like a report Isaacs had requested based on the evidence he heard.

39A note at the bottom of a driver’s copy of the MVAR, which Cst. Watson acknowledged was his handwriting, stated:

Williams Southbound

West Dr. Brampton

Rear ended by Oreskovic

As She Slowed to Stop at

Light

40In cross-examination it was suggested that by this note Cst. Watson was providing the driver with the script for the fake accident. Cst. Watson denied this although Cst. Watson said he could think of no reason to have made such a note on the driver copy of the MVAR.

MVAR # 6 – April 23, 2010 – Penaloza and Farray (Nine Occupants)

41Penaloza testified he dealt with Isaacs and it was Isaacs who provided him with the driver portion of the MVAR.

42Farray testified he dealt with Nabil who told him he had connections to get a MVAR. To his knowledge Isaacs only involvement was to open the gate at the place they damaged the vehicles.

43Isaacs testified this fake accident was arranged by Nabil and his only involvement was to let people into the yard at First Canadian so the vehicles could be damaged there.

44Cst. Watson testified this sounded like an accident Isaacs reported to him.

45Exhibit 9B is a ticket form that is blank apart from the name “Penaloza” on the first page.

MVAR # 7 – August 9, 2010 – Franso and Terenzi (Seven Occupants)

46Terenzi is a tow truck driver. He testified he was at Assured and heard Nabil saying he knew how to get rid of vehicles, which meant get insurers to pay for an unwanted vehicle. Terenzi was in a rush to get a new vehicle before his next child was born. He went over the details and location of the accident with Nabil and supplied his wife’s name and sister-in-law’s name as passengers. Nabil gave him the accident report and Terenzi got paid $23,000 for his vehicle.

47Franso testified that Nabil was a friend of her brother. Her vehicle had been damaged and, while she wanted it fixed, without her advance knowledge it was used in a staged accident.

48Nabil testified he got this MVAR from Cst. Watson and paid him $3,000. Linda, a friend of Isaacs, provided some of the names of passengers.

49Nabil testified that sometime after Cst. Watson’s arrest in April, 2010 Cst. Watson came to Assured and told Nabil to stick to the same story. Nabil told Cst. Watson words to the effect “you screwed us” because everyone was getting arrested.

50Isaacs denied involvement with this MVAR.

51Cst. Watson testified this looked like a MVAR he prepared for Isaacs based on the testimony he heard.

MVAR # 8 – August 24, 2010 – Owusu and Chevers (Seven Occupants)

52Owusu testified he had a vehicle he wanted rid of and he met a man at a gas station who said he would help. He gave the man the names of two friends to list as being in the vehicle. He later met the man, received the top part of the MVAR and handed over his vehicle. The man told him where and how the accident would occur. Owusu was not cross-examined.

53Chevers was unemployed and met someone named Gav who said she could get paid for being listed as the driver. Chevers recruited three passengers. She was told she would get a ticket for failure to yield. Gav gave her a ticket and the top part of a MVAR. Gav was six feet tall with shoulder length hair. (In other words he bore no physical resemblance to Isaacs, Nabil or Raj). Chevers was not cross-examined.

54Isaacs testified that he had no involvement in this MVAR.

55Cst. Watson testified this looked like a MVAR report he prepared for Isaacs based on the testimony he heard.

MVAR # 9 – August 26, 2010 - Blackwood and Chalfoun (Seven Occupants)

56Clifton Blackwood testified that he and his twin brother, Conrad, knew Cst. Watson as children in Jamaica. They became reacquainted because Cst. Watson frequented a restaurant two doors away from the clothing store Conrad owned and he worked at. Conrad was also in the business of connecting accident victims with rehabilitation centres.

57Blackwood knew a “Raj” who was involved in getting people to allow their names to be used in false accidents. Through discussions with both Raj and Conrad he agreed to let his and his wife’s name be used in a fake accident. Raj picked up Conrad’s vehicle at the store and took it away for the fake accident.

58Blackwood identified the driver portion of the MVAR. He gave Cst. Watson the information needed on the MVAR for himself and his wife. Cst. Watson later dropped off the MVAR. Cst. Watson also gave him a card indicating where the vehicle was. He went to the pound and saw that the vehicle was damaged.

59At some later date Cst. Watson stopped by the store and said he was suspended and being investigated, although he did not know what for. He told Blackwood to stick to the story about the accident.

60He said it hit home, and he was a bit devastated, when he heard that Cst. Watson had been charged.

61In cross-examination it was suggested that the witness was, in fact, Conrad and not Clifton Blackwood. The witness denied this and produced a driver’s licence in the name of Clifton Blackwood. I did not find the driver’s licence photo dissimilar to the witness. Conrad Blackwood was at court, although not called as a Crown witness. The defence declined the offer to have him bound over so that he could be called by the defence. In cross-examination, Blackwood said the story he was to stick to was that there was an accident. He agreed they did not sit down and work out a story. Blackwood also acknowledged that he was told during his initial police interview he would not be arrested if he told the truth.

62Chalfoun testified that in 2010 she had an Ontario driver’s license but she was not the owner of a Dodge Caravan as indicated in the MVAR. She was shown the officer copy of a ticket written by Cst. Watson charging her with failure to stop at a red light. She testified she had never seen it before. There was no cross-examination. There is no evidence that Chalfoun was involved in any criminal activity although her identity was used.

63Cst. Watson testified to a casual acquaintanceship with Clifton and Conrad Blackwood after he reconnected with them in Brampton. They told him that, being twins, they had been able to use one passport to travel back and forth to Jamaica prior to both obtaining a Canadian passport, which is a form of immigration fraud. Cst. Watson testified that Conrad told him he also had been raided by the RCMP for selling bootleg movies and music.

64Conrad told Cst. Watson that Clifton had been in an accident and needed a MVAR. Cst. Watson went to see Clifton and prepared the MVAR then and there. Cst. Watson testified that in his opinion, it was Conrad not Clifton, who testified for the prosecution. In cross-examination he said he guessed they needed a MVAR because the vehicle had been moved but it was not his business to know why they needed a MVAR. He also indicated that when he went to take the statement the damaged vehicle was actually at the Blackwoods’ store. He could not recall how Chalfoun was to be served with the ticket he wrote.

65Isaacs testified he had no involvement in this MVAR

Cst. Watson’s Report of Lost Police Notebooks

66As of 2010 Sgt. Westlake was in charge of the traffic unit that Cst. Watson was assigned to. In accordance with standard practice he reviewed Cst. Watson’s police notes periodically to ensure they were being kept properly.

67In September, 2010, Cst. Watson advised Sgt. Westlake that upon returning from a trip to Jamaica he was advised by his sister that his vehicle had been broken into. A computer case, containing his police notebooks, had been taken. He reported that notebooks for the period October 30, 2009 to September 19, 2010 were missing. Sgt. Westlake recorded the following in a January 5, 2011 memorandum, which I accept as accurate:

He advised he normally kept his notebooks at home but had left several in his car that were required for disclosure and believes they were stolen. I requested Cst. Watson #1829 to make further checks for these books.

68On April 14, 2011, the day he was arrested, the police executed a search warrant at Cst. Watson’s home and found one of the reportedly stolen notebooks, covering the period November 2, 2009 to February 18, 2010, in the garage.

Status of Provincial Offence Tickets Listed in MVARs Prepared by Cst. Watson

69Of the nine MVARs, eight indicate a ticket is being issued. The procedure was that at the end of a shift officers leave the ticket forms in a basket at the station to be entered into the computer system for processing in court. Cst. Watson testified that he intended that all eight tickets be issued and so would have followed the usual procedure. The evidence, however, is that only three tickets were entered into the system.

70The Certificate of Offence (traffic ticket) form contemplates that it will be filled out and served by the officer dealing with the driver. The form to be signed by the officer, states:

And I certify that I served an offence notice personally upon the person charged on the offence date.

71Cst. Watson testified that he so certified the tickets at issue in this case notwithstanding that he relied upon others, such as Isaacs or one of the Murads, to serve the tickets. Cst. Watson characterized this as an error in judgment. He analogized this to a situation he knows to occur in which an officer might leave a ticket with a family member of an injured driver, or even on the hospital bed, if the driver was being treated and could not be located in the hospital.

Losses to Insurers

72Michael Lake is a member of the Ontario Injury Rings Investigative Unit of the Insurance Bureau of Canada. He obtained the various insurer records relating to claims paid to persons identified as occupants of the vehicles in the nine MVARs.

73In some cases vehicle owners filed claims for damage to the vehicle. In other cases persons claiming to be drivers and passengers filed an Ontario Claim Form to initiate a claim for accident benefits, which included income replacement benefits and claims for housekeeping and child care.

74Insurers regard the MVAR as establishing the fact of an accident and benefits are processed accordingly. Payments for physiotherapy and similar services are typically paid to the clinic. Other accident benefits such as for income replacement, housekeeping and child care are typically paid directly to the claimant. Compensation for property damage to the vehicle is paid directly to the owner.

75Mr. Lake provided a summary of his findings, which demonstrated that insurers paid out $915,959 in claims related to these nine MVARs. Each accident exceeded $5,000. Insurers also incurred an additional $271,931 in expenses for items such as independent medical exams, collision reconstruction costs and legal expenses.

76At trial a number of the fictitious drivers and passengers testified that they had paid some amount back to their insurer.

GPS, Computer Dispatch Data – Other Evidence

77John Mackenzie is a civilian who has been employed by the PRP for 28 years. He is now the Supervisor of Application Development and is very familiar with the GPS system installed in PRP vehicles in 2004. The GPS chip communicates with the police computer system every 700 meters travelled or every 30 seconds, whichever comes first. Each car is uniquely identified and each officer logs on to a vehicle by means of a password.

78The GPS data is superimposed on a map so dispatchers can see where vehicles are located. If a chip fails no data is transmitted. He has never seen a GPS chip transmit data but do so inaccurately. He noted that if a GPS was inaccurate in the sense of placing a vehicle a significant distance away from its actual location then you would see cars appearing to leave highways and pass through buildings. That does not happen. He acknowledged that conditions, such as buildings and electrical storms, can affect GPS but only to the extent of a temporary jump or jitter after which the vehicle is seen to proceed normally. The GPS chip is widely used for commercial applications and guaranteed to be accurate within six meters. I have no hesitation in concluding the GPS data is completely accurate and reliable as it relates to this case.

ANALYSIS

79The Crown called fourteen witnesses who were listed as drivers or passengers in the MVARs #2 to #9. While, with the exception of Chalfoun, they were unsavoury witnesses having agreed to participate in an insurance fraud most had no criminal record. They all denied that any accident had occurred and, quite understandably, none were challenged in that regard in cross-examination. I find as a fact that these accidents did not occur. I further accept. Clarke’s evidence that MVAR #1 related to an accident that did occur although the MVAR listed four occupants whereas Clarke was the driver and sole occupant.

80I now turn to the evidence that is independent of the evidence of Isaacs, Nabil and Blackwood, all of whom are unsavoury witnesses.

81To put matters in context, in Cst. Watsons mind, the PRP was out to get him. One would expect him to be particularly concerned to avoid any hint of impropriety. Isaacs at best was a casual friend. Isaacs had given him a tow when he needed it and lent him a vehicle one weekend. Cst. Watson had directed Isaacs to some accident scenes. They met once in a while for casual conversation.

82Ms. von Achten submitted that I should give weight to Cst. Watson’s demeanour such as maintaining eye contact; being firm and assured; and the fact he was “honestly upset” at the allegations. We caution juries against attaching much significance to demeanour. The fact that Cst. Watson, an experienced witness, provided emphatic denials is itself of little weight. Further, these emphatic denials stand in contrast to what the evidence, in light of common sense and experience, demonstrates.

83Ms. von Achten also submitted that Cst. Watson’s credibility was enhanced because he made admissions against self-interest. In fact Cst. Watson’s admissions were mostly of known and incontrovertible facts.

84Cst. Watson admits that he prepared the nine MVARs. His police notes of MVAR #1 are, on their face clearly deceptive. They record Cst. Watson as having received a radio call, being on scene at the accident and Clarke having “stated” to him how the accident occurred. Similarly on MVAR #2 he notes that Wilkinson, a man he admits he never met, had “stated” that he didn’t see the other vehicle as he pulled out.

85Cst. Watson testified he was simply using the same format as he always used in preparing notes regarding an accident. He always recorded himself on scene and he always noted what each driver stated to him. I, therefore, find that his police notes for MVARs #3 to #9, which were reported lost, followed this format and were similarly deceptive.

86Cst. Watson testified that he had no intention of being deceptive, explaining that the notes were just for him to refresh his memory. He said if he had been called upon to testify in relation to any of the MVARs prepared at the request of Isaacs, he would have been truthful and stated he was never on the scene, did not speak to the drivers and simply relied upon information from Isaacs.

87This does not make any sense to me for a number of reasons:

a. making notes that were deceptive, and which would be subject to disclosure, would expose him to police disciplinary charges;

b. the idea the notes were just to refresh his memory, and that he could and would have clarified that his source of information was Isaacs if called upon to testify, is belied by his own evidence at trial. Looking at his notes he could not tell which MVARs he prepared at the request of Isaacs.

c. as an experienced officer he would know that, as Mr. Scott put it, he would be “torn up” in cross-examination if he admitted to preparing deceptive notes.

88If Cst. Watson was telling the truth, and if he believed the MVARs were accurate, and he truly intended that the at fault driver face charges, one would expect that the tickets would be entered into the court system. The fact that in five of eight cases the tickets were not processed indicates strongly to me that Cst. Watson was deliberately not submitting the tickets. The evidence does not explain why Cst. Watson did submit three tickets into the court system. There could be any number of reasons, such as concern about scrutiny by senior officers on particular days. In any event, as juries are instructed, the evidence need not answer all questions. The focus is whether the charges have been proven beyond a reasonable doubt.

89Cst. Watson was adamant, in countless answers in cross-examination, that in preparing the MVARs he accurately recorded the time Isaacs said the accident occurred and the time Isaacs reported the accident to him to the best of his ability. He said the fact that the gap between these times ranged from 0-15 minutes did not set off alarm bells because he was only focused on writing down the information provided to him and not to comparing the times.

90On the MVAR form the box for time of accident is at the end of the second line and the box for the time of the report is the start of the third line. In other words in filling out the form one would logically fill in the boxes one after the other. Cst. Watson made the point several times in cross-examination that he is an experienced officer and not stupid. I agree. I find it inconceivable he would not notice that these times made no sense given the scenario he described of Isaacs going to the accident scene, getting detailed information from up to ten individuals, towing the vehicle and then calling Cst. Watson.

91Cst. Watson knew that the Blackwoods were dishonest having committed immigration fraud. It is inconceivable to me that an officer acting honestly and in good faith would rely upon them to issue a MVAR assigning liability for an accident and charging the other driver.

92Cst. Watson also signed the tickets that were issued certifying that he served them personally. This is certainly dishonest. What is of greater significance is that, given Cst. Watson’s thought that the PRP was out to get him, it makes no sense that he would write a ticket and rely upon Isaacs or one of the Murads or Blackwoods to serve it. The person charged could easily see that the ticket stated it was served by a police officer when it was not. This would mean that Cst. Watson was again exposing himself to great risk to his career and livelihood.

93Cst. Watson’s handwritten note on the driver’s portion of MVAR #5 amounts to a script for the drivers to follow as to how the accident occurred. There was no need to tell a driver involved in an accident who rear-ended whom and where.

94The GPS evidence is rendered less significant by the fact that Cst. Watson admitted that in many cases he was nowhere near the accident scene at the time he listed on the MVAR as the time he received the report. Cst. Watson suggested that as he knew his vehicle had GPS he would not have been so foolish as to misrepresent his location in his notes or in communications with dispatch. I do not agree. Clearly if a dispatcher or supervisor happened to note a discrepancy it could be explained in any number of ways ( for example, I forgot to update my location; I am already clear of the accident scene.) The time and effort that clearly went into assembling the GPS Unit History and Computer Aided Dispatch data presented in court supports the conclusion that the risk of discrepancies being noted by an observer not already focused on the issue was low. In any event I am satisfied that Cst. Watson made the determination the cash reward was worth the risk. As I am able to reach a conclusion without considering the GPS evidence in support of the Crown case I will not discuss it further.

95I have just explained how I can find no innocent explanation for making deceptive police notes; recording a very short gap between accident time and report time and failing to enter tickets in the court system. They are, however, logically explained if Cst. Watson is party to the fraud. Police notes are routinely reviewed by senior officers. The deceptive notes would appear regular on their face. The short gap in time would be consistent with Cst. Watson being on patrol and responding to an accident. MVARs are reviewed by senior officers and, except in unusual circumstances, senior officers expect to see a charge laid. Having the person listed as charged actually attend court could, however, raise potential problems. The drivers were mostly petty or first time criminals. This is the sort of person who might become frightened and say something that would expose the fraud.

96For the reasons discussed, I do not believe Cst. Watson’s evidence nor does it leave me with a reasonable doubt about his guilt.

97To summarize, my findings of fact, based upon the circumstantial evidence and the evidence given by Cst. Watson, without reliance on Isaacs, Nabil and Blackwood, are as follows:

a. Cst. Watson prepared the nine MVARs without attending the scene or speaking to the drivers and passengers.

b. Cst. Watson prepared notes related to the nine MVARs that were intentionally deceptive in that they indicated he was on scene and dealt directly with the drivers.

c. Cst. Watson intentionally 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.

d. Cst. Watson prepared the nine MVARs indicating a small gap in time between the time of accident and the time of report, and in most cases that the at fault driver was charged, in order to avoid detection by senior officers.

e. Cst. Watson, in five cases, intentionally failed to submit the tickets to be processed in the court system to facilitate the fraudulent scheme and lessen the risk of detection.

98I am satisfied that the only reasonable conclusion that can be drawn from this circumstantial evidence, and the evidence of Cst. Watson, is that Cst. Watson knowingly participated in and facilitated an insurance fraud and was paid to do so. As such, I am satisfied beyond a reasonable doubt that Cst. Watson was a knowing participant in the insurance fraud, and was paid for preparing the MVARs. This conclusion, as I will explain when I review the counts, leads me to find Cst. Watson guilty on all but four counts.

99For the sake of completeness I will, however, comment on the evidence of Isaacs and Nabil. They are obviously unsavoury witnesses as being the directing minds of a number of these frauds. Nabil gave his statement after being assured he and his sister would not be charged. Isaacs was charged but probably anticipates he will receive some consideration for having made a confession that also implicates Cst. Watson. In accordance with the standard Vetrovec warning their evidence must be looked at with the greatest care and caution. It would be dangerous to rely on their evidence if it is not confirmed by another witness or other evidence.

100Ms. von Achten pointed out that Nabil, although he testified he paid cash to Cst. Watson, also testified that there were no discussions with Cst. Watson in which he offered to pay for a MVAR or Cst. Watson asked to be paid. I do not find this unusual or concerning. Isaacs had the connection with Cst. Watson and it stands to reason that Isaacs would tell Nabil what he had to pay.

101The evidence given by Isaacs and Nabil is largely corroborated by the circumstantial evidence as I have analyzed it and the conclusions I have reached. Given that nine MVARs gave rise to over $900,000 in insurer payouts it is certainly plausible that a fraudster would pay $6,000 for a two vehicle MVAR. While approaching their evidence with the greatest care and caution I am satisfied that they made the payments to Cst. Watson that they testified to.

102With respect to each of the nine MVARs, Cst. Watson is charged with:

a. being a party to the offence of obtaining, by fraudulent means, monies in excess of $5000 contrary to s.380 (1) of the Criminal Code. (Sometimes there are multiple counts related to one MVAR as vehicle occupants made claims to their own automobile insurers so that multiple insurers were defrauded.)

b. making a false document, being the MVAR, knowing it to be false and intending that it be used or acted on as genuine, to the prejudice of anyone, contrary to s.366 (1) of the Criminal Code.

c. committing a breach of trust by creating and submitting a false MVAR contrary to s.122 of the Criminal Code.

103Cst. Watson is also charged with seven counts of wilfully attempting to obstruct justice by issuing false Provincial Offence Notices relating to false MVARs.

104The evidence establishes beyond a reasonable doubt that, with respect to all nine MVARs, the fake drivers and passengers committed fraud contrary to s. 380 (1) of the Criminal Code by stating falsely they were in an accident, which resulted in payments by the insurers. Cst. Watson is a party to these offences by preparing false MVARs, knowing they would be utilized to submit false claims. As such, he is guilty as charged on the fraud charges.

105My findings of fact also lead me to be satisfied beyond a reasonable doubt that Cst. Watson is also guilty of the offence of breach of trust by a public officer contrary to s.122 of the Criminal Code. Cst. Watson was a public officer. I have already explained the basis on which he committed fraud. The fraud was clearly in the course of his public duty and he intended to commit fraud in the course of his public duty.

106My findings of fact also lead me to be satisfied beyond a reasonable doubt that Cst. Watson is also guilty on the charges of making a false document, knowing it to be false with the intent it should be acted on as genuine to the prejudice of the insurers.

107The attempt to obstruct justice charges in counts 8, 13 and 44 are cases in which a ticket was issued and entered the court system. On these counts, my findings of fact lead me to be satisfied beyond a reasonable doubt that Cst. Watson is guilty. Issuing these tickets, to persons not in an accident, clearly was an intentional attempt to obstruct, pervert or defeat the course of justice.

108The attempt to obstruct justice charges in counts 18, 23, 28 and 37 are cases in which no ticket ever showed up in the system. This would be consistent with Cst. Watson never putting them in the basket to be processed. These counts are not made out as the evidence is that these tickets were never issued. As such, Cst. Watson is not guilty on these counts.

CONCLUSION

109Cst. Watson is found guilty on all counts except counts 18, 23, 28 and 37. Counsel have not yet made submissions as to the counts on which convictions should be entered having regard to the Kienapple principle barring multiple convictions for the same act.

Sproat, J