Court File and Parties
Court File No.: CR-13-30000784-0000 Date: 2016-05-24 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Applicant And: Anna Clermont, Solange Fervius-Celine, and Jeanette Etienne, Respondents
Counsel: Patrick Woods, for the Crown Andrew McKay, for Anna Clermont Alan Sobcuff, for Solange Fervius-Celine Christian Pearce, for Jeanette Etienne
Heard: May 17-19, 2016
Before: Michael G. Quigley J.
Reasons for Judgment
[1] In this proceeding, Anna Clermont, Solange Fervius-Celine and Jeanette Etienne are charged with fraud over $5,000. They are alleged to have defrauded the Jevco Insurance Company by making claims they were not legally entitled to make for statutory accident benefits arising out of a motor vehicle accident that occurred on Friday, April 23, 2010, at the corner of Kingston Road and Guildcrest Drive in Scarborough, Ontario.
[2] The accident took place at about 9 o’clock in the morning, just at the end of the morning rush hour. Michael Wilson and Dominique Coladon both worked for a furniture moving company. Mr. Wilson was a partner. They had just made their first delivery of the day at a house located south of Kingston Road on Guildcrest Drive. They were heading west towards their second delivery in the Beaches area of Toronto. They were driving a 5-ton Mack cube truck with a large rectangular box on the back, typical of vehicles used by smaller private moving companies.
[3] At the intersection of Kingston Road and Guildcrest Drive, Michael Wilson waited for a break in the traffic and then drove the truck across the three eastbound lanes of traffic and turned left into the westbound "passing lane" of Kingston Road, located closest to the median that divided the eastbound and westbound motorways. Just before he executed the turn, he caught a glimpse of a Pontiac Grand Am vehicle in the exit driveway of the Esso gas station and convenience store located on the northeast corner of that intersection. That vehicle appeared to be about to head out westbound onto Kingston Road.
[4] Seconds later, after completing his left turn into the westbound lanes, Mr. Wilson felt the impact of a collision on the passenger side of his Mack truck. At first he thought he had run over somebody. However, his co-worker, Dominique Coladon, could see through the side view mirrors on his side of the truck that the vehicle that had pulled out of the Esso station had driven into the passenger side of the Mack truck that Mr. Wilson was driving.
[5] The purple Pontiac Grand Am sustained damage that caused it to be inoperable. The left front quarter panel in front of the driver was crumpled, and the driver’s side of that vehicle was also significantly damaged. The driver’s side door was inoperable. Ultimately, this required the driver, now known to be one Jean Longchamp, to exit that vehicle through the passenger door. The driver’s side front wheel on the Grand Am was askew after colliding with the truck and the steering was inoperable.
[6] Mr. Wilson, the driver of the Mack truck, quickly got out of his vehicle and walked around the front and approached the purple Grand Am. He wanted to make sure that no one was injured. He assisted the driver of that vehicle to exit from the passenger side door and was reassured he was not injured. The only other person present was Mr. Coladon, who Mr. Wilson thought had gotten out of the passenger seat of the truck. Although the driver was not injured, he was claiming that Mr. Wilson had caused the accident. Mr. Wilson saw no passengers in the Grand Am apart from the driver.
[7] As it happens, there is an ‘Oil Changers’ car franchise located on the northwest corner of Kingston Road and Sanders Boulevard. Guildcrest Drive is the name of the street south of Kingston Road and Saunders Boulevard is the name of the equivalent street north of Kingston Road. As it happens, Police Constable Philip Christian of the Toronto Police Service was standing in the service bays of that Oil Changers franchise at the very moment that the collision took place that day. He was there to investigate a break and enter which had been reported by the owner of the car lube franchise from the night before.
[8] P.C. Christian did not actually see this collision take place, but not surprisingly, as he was discussing the alleged break and enter offence with the franchisee of the lube business, the unique crunching sound of car metal in the collision of these two vehicles only a short distance away caused him to look up between one and one and a half seconds later, directly at Kingston Road in front of him where the collision took place.
[9] P.C. Christian watched the white Mack truck and the purple Pontiac Grand Am slow down and come to rest following the collision. When both vehicles came to a stop after a couple seconds, he saw the driver of the truck come around the front of his vehicle towards the purple Grand Am. He saw him helping the driver of the purple Grand Am to get out of the passenger side of his vehicle, an action that should serve to remind that no good deed goes unpunished.
[10] P.C. Christian immediately interrupted his investigation of the break and enter and headed towards the scene of the collision. He thought that it took him about 10 seconds to walk there and that he was about 40 to 50 metres away from where the collision took place. He was adamant throughout his evidence, both in chief and in cross-examination, that as he looked south through those doors to observe the immediate aftermath of the collision, and as he headed towards the scene, he had a clear and unobstructed view of that scene at all material times, even though there was some advertising writing on the large clear glass garage doors of the service bays at the Oil Changers franchise. He was unrefuted in his claim that it did not obstruct his view. He said the photographic exhibits accurately depicted the doors he was looking through.
[11] Against this background, it will suffice to indicate that none of Michael Wilson, Dominique Coladon, or P.C. Philip Christian saw any other persons in the purple Pontiac Grand Am vehicle that was damaged when it came into contact with the Mack truck in the course of the collision. None of them saw any individuals other than the driver, Jean Longchamp, exit that purple Grand Am vehicle. None of them saw any of the passenger side doors of that vehicle open at any time immediately following the collision. The collision had not had sufficient force to cause the airbags to deploy. None of them saw any other pedestrians who might have stopped and looked at the situation. None of them saw any drivers stop, either to observe the collision or to pick up any individuals who might have exited from that Pontiac Grand Am vehicle. None of them saw one, two, or three women appear to be associated with that vehicle, and to have exited the vehicle immediately after the collision. None of them saw one passenger of the vehicle unconscious for some time and sitting on the road after the collision.
[12] However, these three accused, Anna Clermont, Solange Fervius-Celine and Jeanette Etienne, later hired lawyers and made claims on the basis that they were passengers in that vehicle driven by Jean Longchamp and that they sustained injuries as a result of the collision. Each of them, along with Jean Longchamp, made claims against Jevco Insurance Company under the Ontario Statutory Accident Benefits regime.
[13] Those claims are alleged to have been fraudulent. The evidence of the other persons involved in that collision is that nobody was present in that purple Pontiac Grand Am vehicle except the driver, Mr. Longchamp. As it turns out, not only were these three accused charged with fraud over $5,000, but Jean Longchamp was also charged. I was advised during the course of the trial, however, that he has fled the jurisdiction and was last seen walking across the border into the United States. His current whereabouts are unknown.
[14] There is one issue in this case. That is whether, as they claimed, any of the three accused were occupants of the purple Pontiac Grand Am vehicle driven by Mr. Longchamp on the morning of April 23, 2010 that collided with the white Mack cube truck. The evidence of Michael Wilson, Dominique Celadon, and P.C. Philip Christian is that none of the three accused were ever in that vehicle at any material time. They say the only occupant of the vehicle was the driver. As such, the Crown contends that the claims made by these three accused women are fraudulent.
Elements of the Offence
[15] The elements of fraud under s. 380 of the Criminal Code have most recently been confirmed in the leading cases of R. v. Théroux and R. v. Zlatic , [^1] its companion case. Both of those decisions draw extensively on the seminal decision in R. v. Olan [^2] from almost forty years ago where the Supreme Court redeveloped the law of fraud in Canada. In that case, Dickson J. described ‘dishonesty’ and ‘deprivation’ as the two essential elements of fraud. Regardless of the circumstances in which the fraud is alleged to have occurred, those key substantive elements of dishonesty and deprivation must be present.
[16] Ewart observes in his text Criminal Fraud [^3] that R. v. Olan was critical to the development of the law of fraud in Canada because (i) it established “dishonesty” as “the keystone of fraud,” and (ii) it abolished the need for actual economic loss to be present before the offence could be made out, instead adopting a broad formulation of “deprivation.” The reference in s. 380 of the Code to “any other means” now embraces any mode of conduct or means of achieving the desired end that can be objectively regarded as ‘dishonest.’ [^4]
[17] Dishonest behavior is sufficient to constitute the physical element of the offence of fraud provided it causes economic detriment, deprivation or risk. No actual infliction of proven economic loss is required, however, and the victim may not even be aware of the dishonesty. [^5] Nonetheless, there must be a nexus and the deprivation of the victim or risk of deprivation that the victim suffers must be caused by the dishonest conduct of the fraudsman.
[18] R. v. Olan also clarified and broadened the concept of deprivation in the law of fraud. It is enough to show that the victim sustained detriment, prejudice or risk of prejudice or deprivation to their economic interests. [^6] Plainly, the notion of prejudice to economic interests as an element of fraud is to be given a wide meaning after Olan .
[19] Finally, where quantification of the loss or risk of deprivation is difficult and claimed by the defence to be determinative in favour of the accused, the decision in Olan unequivocally supports the principle that the mere creation of a financial risk to another by dishonesty constitutes the offence of fraud. Olan itself was a case where risk of loss, not actual loss, was at issue. It shows that proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim does not require that actual economic loss must be the outcome of the fraud. The point was well made by English Court of Appeal in R. v. Allsop [^7] , in several passages approved in Olan . In the first of those, the court stated that:
Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is "intended" only in the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit, which is employed, imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss. (emphasis added)
[20] In summary, to establish based on these principles that Anna Clermont, Solange Fervius-Celine and Jeanette Etienne are guilty of fraud over $5,000, the Crown must prove beyond a reasonable doubt that they acted dishonestly and that their dishonest behavior or conduct caused economic detriment, deprivation or risk to the complainant, Jevco Insurance company. Stated from the opposite perspective, it requires proof to the criminal standard that Jevco was deprived, or that there was a risk of it being deprived of monies in excess of $5,000 due to the dishonesty of Anna Clermont, Solange Fervius-Celine and Jeanette Etienne . Failure to prove that the amount of deprivation is greater than $5,000 may result in a conviction on the lesser but included offence of “fraud under,” contrary to s. 380(1) (b) of the Criminal Code , if all other elements of the offence are made out.
[21] As I mentioned, R. v. Theroux and its companion case, R. v. Zlatic , above, are the most recent reaffirmations of the principles set out in Olan . They confirm that:
a. deprivation is an essential element of the offence of fraud; [^8]
b. the imperiling of an economic interest is sufficient even though no actual loss has been suffered;
c. fraud is an offence of general scope capable of encompassing a wide range of dishonest commercial dealings; [^9]
d. it is not necessary that an accused profits as a result of his fraud; [^10] and
e. it is not necessary that the victim be targeted or even ascertained. [^11]
[22] Subjective knowledge of the prohibited act of dishonesty combined with subjective knowledge that the dishonest conduct could result in deprivation to another will be sufficient to establish the requisite intent. [^12] Further, “[w]here the conduct and knowledge required by these definitions is established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.” [^13]
[23] The Crown’s theory of the fraud perpetrated here has a simple foundation. It is that claims for statutory accident benefits were dishonestly made by these three accused, Anna Clermont, Solange Fervius-Celine and Jeanette Etienne, and that those claims caused deprivation to Jevco Insurance Company insofar as that complainant paid out amounts directly to each of these three accused, and insofar as it incurred economic deprivation by paying amounts to third parties for facilities, assessments and treatments relating to each of these three accused when they had not actually been in a motor vehicle accident at all, and thus had no legal or factual foundation to have any of those services provided for their benefit.
The Evidence
[24] In this case, four witnesses testified for the Crown. They were the two occupants of the Mack truck, Michael Wilson the driver, Dominique Coladon the passenger, and P.C. Philip Christian, the police officer who was in the Oil Changers franchise investigating the break and enter offence when this motor vehicle accident and its aftermath took place right before his eyes. The evidence of the driver, Michael Wilson, is recorded in the preceding description of the collision and its aftermath.
[25] Dominique Coladon was a co-worker of Michael Wilson and he was the passenger in the truck. Mr. Coladon had a somewhat jumpy demeanor that was visible as he testified, but he was also doing his best to recall the events of that day as best as he could. He said he remained in the truck at all times. Michael Wilson thought that he had gotten out of the truck. Dominique said that he only saw the events through the side view mirror outside of the passenger side door of the truck. He drew a map of the location which was Exhibit 1 of the trial and difficult to decipher, and then in the course of his evidence, he suddenly realized that he had drawn the map in the reverse of what it ought to have shown.
[26] He also said that the periods of time from when the collision occurred until Mr. Wilson came around to the Pontiac Grand Am was a matter of a couple of minutes, whereas Mr. Wilson said it was less than a minute, and his evidence was corroborated by P.C. Christian who said he almost immediately saw the driver of the Mack truck get out of the driver’s side and come around the front of the truck to see the collision and to make sure the driver of the Pontiac Grand Am was all right. So while it was suggested to me that Mr. Coladon’s evidence made the most sense and was the most reliable, I found it to be exactly the contrary. It was well-meaning but inaccurate.
[27] Importantly, however, his testimony showed that he saw the purple Pontiac motor vehicle crashing into the right side of the box of the Mack truck, behind the passenger cabin, located just where a ladder went up the side to an entry door on the passenger side of the truck. That ladder, located just in front of the right rear wheel, was bent inward as a result of the collision. That damage was described by Mr. Wilson, Mr. Coladon, and P.C. Christian, and it is plainly visible in the photograph taken of the side of the Mack truck at the Collision Reporting Centre later in the day on Friday, April 23, 2010.
[28] The fourth witness was Mr. Wilfred Cassidy. He is a former police officer with 25 years’ experience. He is now the insurance investigator with Jevco Insurance Company who investigated this matter. He took the audio statements from each of the three claimants when the matter was being investigated and before they were charged. In addition, Mr. Cassidy introduced the nine three-ring binders of documentary evidence relating to claim AP 266001-001, the file number relating to these three claimants and also, importantly, Mr. Jean Longchamp.
[29] The first five binders introduced as Exhibit 5 contain all of the documentary evidence accumulated by Jevco Insurance Company which was introduced under the business records exception contained in the Canada Evidence Act , relating not only to the three claimants, but also Mr. Longchamp. Exhibit 6 consists of four further binders that particularized documentation relating to each of these accused. Exhibit 6-A consists of two binders relating to Anna Clermont's claim. Exhibit 6-B contains the documentation relating to the claim of Solange Fervius-Celine, and exhibit 6-C contains documentation relative to the claim of Jeanette Etienne.
[30] The defendants did not testify at this trial and no defence evidence was called. However, there was evidence of the three accused contained in the three separate audio-recorded statements taken by Mr. Cassidy and introduced by Crown counsel as Exhibit 8. Each of the three accused says not only that each of them was involved in the collision and present at the scene, at least briefly, but each also describes their recollections and experiences during the collision and the injuries they claim to have sustained as a result. Under R. v. W. (D.), if I accept those statements as truthful, then the Crown would have failed to prove the charges to the criminal standard.
[31] There is a subsidiary aspect to the question of whether the charges of fraud over $5,000 are proven. That aspect requires the quantification of Jevco Insurance Company’s loss. That question is whether amounts paid out to the three accused directly, or to or for their benefit, exceeded $5,000. The evidence that quantifies that deprivation is entirely contained in the documentary records that comprise Exhibits 6-A, 6-B and 6-C.
[32] There are two questions on this trial. The first is whether I am satisfied beyond a reasonable doubt on the whole of the evidence that none of these three accused were present in the motor vehicle at the time that the collision in question took place. If I am satisfied that they were not occupants of the vehicle at that time, then plainly their claims made under Ontario's Statutory Accident Benefits regime would have had no legal or factual foundation and would be fraudulent.
[33] On behalf of and with the consent of their clients, defence counsel acknowledge that (i) Ms. Anna Clermont received at least $4,800 directly in benefits from Jevco Insurance Company, (ii) that Ms. Solange Fervius-Celine received at least $4,700 directly, and (iii), that Ms. Jeanette Etienne received at least $2,200 directly in statutory accident benefits.
[34] It is also acknowledged and admitted by defence counsel that additional amounts paid by Jevco Insurance Company to third-party service providers in the case of each accused causes the aggregate of monies paid to them or for their benefit to exceed $5,000. Those amounts may have been paid either for the medical or treatment assessment of the alleged injuries sustained by these three defendants, or for the costs involved in attendant care assessments made at their homes by occupational therapists, or other similar expenditures made under Ontario’s Statutory Accident Benifits regime, or for the preparation of transcripts arising out of statements given to the insurance company. However, even excluding the insurer examination costs that are arguably not amounts paid to or for their benefit in a strict sense, it is plain that each of the three accused received amounts directly or that was paid to third parties for their specific benefit arising out of the insurance claims they made, and that are in excess of $5,000.
[35] In the case of Ms. Anna Clermont, the amount she acknowledges having received directly totals at least $4,800. The additional amounts paid to third parties by the insurer for the benefit of Ms. Clermont are claimed to total $7,869.58 and $8,427.16, for a total of $16,296.74. Thus, I find that the total including amounts paid to her directly in the case of Ms. Clermont total $21,096.74 and that the total excluding insurer examination costs of Ms. Clermont is $12,669.58.
[36] In the case of Ms. Solange Fervius-Celine, she acknowledges having received $4,700 directly. She claims through her counsel that she did not receive $3,150 that Jevco Insurance Compnay claims to have paid to her on September 9, 2010 by cheque #01795388. [^14] . However, plainly her solicitors claimed that amount for her for 9 weeks of caregiving between April 24, 2010 and June 25, 2010. The cheque indicates it was cashed, but is stated to have been deposited to the account of CMCC Inc., regarding services to Solange Fervius-Celine, so even if not received directly by her, I am satisfied it was paid for her benefit. As such, I find that $7,881.51 was paid directly or indirectly to her for services, and a total of $5,918.78 was paid by Jevco Insurance Company for facilities or examinations of Ms. Fervius-Celine. Consequently, I find that the sum of $13,800.29 was paid to her or for her benefit and that the total excluding insurer examination costs of Ms. Fervius-Celine is $10,942.73.
[37] Finally, in the case of Ms. Jeanette Etienne, $2,236.46 was paid to her directly, and $16,152.80 was paid by Jevco Insurance Company for facilities or examinations of Ms. Etienne, so I find that the sum of the totals paid to her or for her benefit is $18,389.26 and that the total excluding insurer examination costs of Ms. Etienne is $12,649.41.
[38] That leaves the fundamental question of whether these three accused were actual occupants of that vehicle on April 23, 2010, along with Jean Longchamp, at the time the motor vehicle accident occurred just after 9:00 a.m. If I believe their statements that they were occupants of that vehicle and sustained injuries as they claimed in that collision, or am left in a state of reasonable doubt on that question, then the fraud would not be proven and they must be acquitted. If I do not believe their statements and am not left in a state of reasonable doubt that they were not in the vehicle, and if I am satisfied on the balance of the evidence that the fraud over $5,000 is proven beyond a reasonable doubt, insofar as each of the three accused would have claimed and been paid statutory accident benefits in excess of $5,000 when they were not entitled to do so, then they must be convicted.
Analysis
[39] I commence my analysis relative to the key question in this case by referring to two important pieces of evidence, but that received little focus or attention in the course of the trial.
[40] A great deal of criticism was levied against P.C. Philip Christian for not having taken notes relative to the motor vehicle collision that he saw, seconds after it took place near the intersection of Kingston Road and Guildcrest Drive in Toronto. To my mind, however, that criticism is entirely undeserved.
[41] P.C. Christian was unrefuted in his testimony that he did not take notes because it was not a serious collision, there were no injuries of any of the people that he saw, and the extent of damage, while crippling relative to the Grand Am which could no longer operate, was not on the level of seriousness that would cause him to take specific notes about that collision and about his interactions with the participants in it. Instead, he sent them to the Collision Reporting Centre. That is the most important initial evidence in this matter, because accident reports were submitted by both Michael Wilson, as driver of the Mack truck, and by Jean Longchamp, the driver of the Pontiac Grand Am. Both reports were prepared within hours of the collision having occurred.
[42] Moreover, P.C. Christian was unrefuted in his insistence that he had a specific and distinct recollection of the accident and his interaction with its participants in the moments thereafter. There were some minor uncertainties to his evidence, including whether he might have moved his scout car over behind the location of the collision at some point in the 15 to 20 minutes during which they waited for a tow truck to arrive, but I have no doubt relative to the observations he testified to about what he saw as the aftermath of the collision and how many individuals he saw present at that location at that time. Contrary to the submissions of defence counsel, his testimony was not “too perfect” to be believed. It was simply a direct, accurate and truthful recollection of what he observed and did.
[43] The two accident reports are also important for another reason. The suggestion was made in argument that P.C. Christian could not have made the observations he did through the glass garage doors that were on both the north and the south sides of the Oil Changers outlet located on the north-west corner of Kingston Road and Guildcrest Drive, not only because it was claimed that his view would have been obstructed by advertising writing painted on the outside of those glass doors, but also because it was counsel's theory that the two vehicles involved in the collision would have come to rest somewhat west of the location of the Oil Changers property. As such, it was claimed that P.C. Christian would not have had the opportunity to make the observations that he claimed he did, before walking over directly to the accident site and engaging with the three individuals, not six, who he found present there.
[44] In the annotations that he made to Exhibit 3, a Google aerial view of the location of Kingston Road at Saunders Boulevard, [^15] P.C. Christian placed the location of the Mack truck and the Pontiac Grand Am that drove into its side directly in front of the Oil Changers property on Kingston Road. While this was challenged by defence counsel, what is most interesting as described in greater detail below is that the accident reports filed by both Michael Wilson and separately by Jean Longchamp confirm P.C. Christian’s placing of the vehicles when they came to rest after the accident. Indeed, Mr. Longchamp’s report, which is interesting for other reasons as I shall discuss, actually places the vehicles farther east right in the middle of the intersection of Kingston Road and Guildcrest Drive. As these reasons will show, he needed to place the vehicles there to permit the story he told the Collission Reporting Centre, a report directly contradicted by Mr. Wilson's report, to make any sense whatsoever.
[45] As for the claim that P.C. Christian’s view would have been obstructed, the five photographs taken on the Oil Changers property showing the garage building where that business operated, the garage doors, the interior front doors, and the interior garage doors included in Exhibit 4-A through E show plainly that on no reasonable assessment could Constable Christian’s view have been considered to be obstructed in any material way.
[46] Turning to the collision reports, they are a study in contrasts. Mr. Wilson's report shows the position of the vehicles at the time of impact as just west of Saunders Blvd. at Kingston Road, and his diagram reflects that he had just completed the left-hand turn onto Kingston Road westbound coming north off of Guildcrest Drive His description reads as follows:
Heading west on Kingston Road after turn. Approximate speed 20 km/h. Was hit on the side of my vehicle by car coming out of Esso/Tim Hortons. He came over all three lanes to my lane at high speed. Sideswipe in front of his car hit the foot ladder on the side of my truck.
[47] In his diagram, Mr. Wilson shows the path of the vehicle that hit his truck emerging from the Tim Hortons/Esso station coming across three lanes of traffic on Kingston Road and then hitting the side of his truck just west of Saunders Blvd.
[48] However the accident report filed by Jean Longchamp records an entirely different collision. He states as follows:
I was driving on Kingston Road going in a direction to the west. The green truck was coming from Guildcrest Drive. Turning left on Kingston Road and hit my car , the 2000 Grand Am at the intersection between Guildcrest and Kingston Road . (emphasis added)
[49] The diagram prepared to illustrate the location of the vehicles on the report filed by Jean Longchamp shows that they were located right in the middle of the intersection of Kingston Road and Guildcrest Drive. This diagram also shows that it was the truck coming off of Guildcrest Drive that drove directly into the driver’s side of his vehicle, not Mr. Longchamp’s vehicle that drove into the passenger side of the Mack truck.
[50] The difficulty with this pictorial rendition of the accident, however, is that it does not reconcile with the photographic evidence taken at the Collision Reporting Centre. There was no damage to the front of the Mack truck. There is no purple paint that came off the side of the Pontiac Grand Am vehicle, and evidently there are no scratches on the front of the truck. Moreover, the collision did not occur in the middle of the intersection of Saunders Boulevard and Kingston Road, but a short distance farther west and it occurred when Mr. Longchamp’s vehicle drove into the passenger side of the Mack truck, not as a result of the Mack truck driving into the side of the Pontiac Grand Am.
[51] Mr. Longchamp’s accident report is also important because when he filled out the report, he reported that in addition to himself, there were three occupants in the vehicle but curiously, he seemed to know the name of only one of them. He reports the first additional occupant of the vehicle to be Anna Clermont, and he indicates that she was injured as a result of the motor vehicle collision. In addition, however, two further occupants were evidently present, since he checked off the boxes for a second and third occupant, in addition to himself. However, the names of these two individuals on the accident reporting form are shown as "unknown" and neither does the accident report indicate whether either of those two unknown persons sustained injuries. Mr. Longchamp signed his name on page 2 of the report, right underneath the admonition that "It is an offence to provide false information."
[52] Turning to the evidence of the three accused, each of them in their own way describes their presence at the scene of the accident.
[53] Anna Clermont says she and Jean Longchamp had picked up her friend Solange. She described the impact on a scale of 1 to 9 as a 9, that is, an extreme impact. She said the impact of the collision threw her to the front and then sent her backward. She was injured. However, she was on the passenger side in the front seat and able to get out of the vehicle. She did not speak to the driver of the vehicle. She did not speak to anyone else. However, she said that the police were called to the accident, arrived, and took a report. When asked who was in the vehicle with her, she said "it was the four of us, it was Solange and I can't remember the other one.” She claimed somebody stopped in another vehicle, picked her up, and took her to her family doctor, whose name she could not remember.
[54] She claimed that the impact of the collision caused her to hurt the right side of her neck and her back. She was also bleeding from the mouth. The bleeding resulted from her face hitting the front of the dashboard. She said she lost consciousness, but she couldn't say for how long. She describes the pain that she endures from the accident as being a 9 out of 9 in severity. She said the police were called but that she left the scene immediately. There is nothing in her statement that indicates that she ever made any inquiry about the safety or status of any of the other three passengers in that vehicle.
[55] Solange Fervius-Celine said they went to the Esso gas station and were coming from east to go west. The truck came out from the intersection after they were on Kingston Road after getting gas for the car, and the truck turned in the middle of the street and hit their car. She acknowledges that Jean Longchamp was driving their vehicle. She said "Jean and his girlfriend came to pick me up”, presumably referring to Anna Clermont. The way she described the accident was similar to the way the driver described it in the accident report, essentially a “T-bone” collision with the truck striking the driver’s side of the Pontiac Grand Am, but importantly, she also said that the impact was sufficient that the Pontiac Grand Am was pushed across two lanes by the force from the truck and came to rest up against the north sidewalk on the westbound side of Kingston Road. She said her head hit part of the vehicle. She said she ran away. She might have fallen down. What was most important for her was to run away and get as far away from the car as possible. There is nothing in her statement that indicates that she ever made any inquiry about the safety or status of any of the other three passengers in that vehicle.
[56] Jeanette Etienne says that she was in the vehicle with Solange. Jean had come to pick her up. However, the car didn't have any fuel so they went to the gas station to fill it up. As they left the gas station, she said there was a big white truck that came out of a side street and turned right in front of them . She saw the collision coming and closed her eyes. She was sitting behind the driver. She acknowledged that the driver side of the vehicle, not the front of the vehicle I might note, was totally destroyed. She had to exit the vehicle by sliding across and getting out of the rear passenger door the Pontiac Grand Am. She says she left immediately afterwards and went straight home. She said she started to do her work like nothing happened and only realized the extent of her injuries subsequently, when she moved the next day. As with the other two, there is nothing in her statement that indicates that she ever made any inquiry about the safety or status of any of the other three passengers in that vehicle.
[57] The fundamental problem with their stories, however, is that the scene of the collision was never out of view of P.C. Christian for any period of time that could have permitted any of the alleged three female occupants of the vehicle, these three accused, to exit the vehicle and either run away, or have been picked up by a stopping vehicle. Indeed, the evidence is entirely impossible and aggravating for its disingenuity.
[58] One is left to wonder how any of the three alleged occupants, two of whom were supposedly unknown to Jean Longchamp according to his statement, although they said in their statements that they knew him, could have exited the vehicle and been driven away by someone who stopped, or have walked away on foot, or have been unconscious for any brief period of time and yet have exited from the back of the Pontiac Grand Am, sat on the ground for some period of time and yet have disappeared.
[59] How could this have happened in such a brief period of time, less than a minute, that it took Michael Wilson to walk around the front of his vehicle? How could individuals getting out of the vehicle and departing the scene not have been seen by P.C. Christian as he looked briefly through the front glass doors of the Oil Changers garage and then walked directly through the front door of that garage out to the location of the collision directly in front of him on Kingston Road? How could the departing occupants not have been able to be seen by Michael Wilson when he came around the front of his truck within a minute of the collision, by Dominique Coladon at all when he was looking in the side view mirror of the truck, or by P.C. Christian as he came to the scene from the adjacent Oil Changers’ franchise?
[60] If there had been three occupants of his vehicle, two in the back seat and one located behind the driver, given that the entire driver side of the vehicle was smashed in, how could Ms. Etienne, who was located behind the driver, have gotten out of the vehicle and disappeared and yet Michael Wilson in his testimony explains that he helped Jean Longchamp get out of the vehicle from the passenger side because the driver side door was damaged? P.C. Christian saw this as well. If there had been three occupants of his vehicle, how could Jean Longchamp have made no inquiry as to their well-being or whereabouts, given no indication to any of the others who were witnesses to the collision that there had been other occupants to the vehicle at that time, or otherwise responded in any reasonable manner one would expect of the driver of the vehicle just involved in a motor vehicle accident concerned for the well-being of the occupants of his vehicle? How could the three accused have gotten out of that vehicle, not spoken to a soul, not made any inquiry as to the health and safety of their friends, the other passengers in the vehicle, and simply fled the scene, all in the few seconds before Michael Wilson came around the front of his truck to see the vehicle and only one occupant, and before P.C. Christian arrived on scene, notwithstanding that he never had the site out of his direct line of vision?
[61] The answer is simple. The three accused were not occupants of that vehicle that day at that time and their claims of having been injured in that vehicle and their claims for statutory accident benefits arising out of that collision are entirely bogus. They were not telling the truth in their statements any more than Jean Longchamp was when he filed a false accident report. While they may not have been initial participants in the ruse, that perhaps having been solely at the instigation of the elusive Mr. Longchamp, these three women quickly got on board, retained lawyers, and made dishonest claims against Jevco Insurance Company.
[62] There is an expression sometimes used when a vehicle is seen driving erratically or dangerously on the road that it is "an accident looking for a place to happen". On April 23, 2010, Jean Longchamp was an accident looking for a place to happen, but of a different sort. Whether it was pre-planned or simply occurred and he realized the opportunity he could make of it, by the time Mr. Longchamp got to the Collision Reporting Centre later that day, he reported a collision that was entirely different from the one that actually occurred. He reported that there were occupants in his vehicle when none were present. Indeed, two of those occupants were “unknown” to him, presumably because at that time he did not know whose names could be supplied to fill in the blanks.
[63] This is fraud, pure and simple. The good fortune was that a police officer happened to be inside the garage on the corner looking out at the collision scene a nanosecond after it happened. Given the involvement of the police officer, it shows the level of dishonesty, and frankly stupidity that Mr. Longchamp could actually try to turn the tables and think he and they could get away with making claims for accident benefits to which he was not entitled, and/or that these three accused could think that they also could benefit from an accident that they were neither present at, nor in which they sustained any injuries whatsoever.
[64] As I indicated, the answer is simple. I do not know where Anna Clermont, Solange Fervius-Celine or Jeanette Etienne may have been on April 23, 2010, but I know with absolute certainty that they were not occupants of the vehicle Mr. Longchamp was driving that was involved in the collision with the white Mack truck driven by Mr. Wilson. Their claims are entirely dishonest and fraudulent. The quantum of the deprivation of Jevco Insurance Company exceeds $5,000 in the case of each of the three accused. As such, notwithstanding the fervent and somewhat ingenious submissions of their three counsel, each of them will be convicted of fraud over $5,000. Convictions will be entered accordingly.
Michael G. Quigley J.
Released: May 24, 2016
Footnotes
[^1]: R. v. Théroux and R. v. Zlatic, [1993] 2 S.C.R. 29, 79 C.C.C. (3d) 466. [https://www.canlii.org/en/ca/scc/doc/1993/1993canlii135/1993canlii135.html] [^2]: R. v. Olan, [1978] 2 S.C.R. 1175, 41 C.C.C. (2d) 145. [https://www.canlii.org/en/ca/scc/doc/1978/1978canlii9/1978canlii9.html] [^3]: See Ewart, J. D., Criminal Fraud, (Toronto: Carswell, 1986) at p. 77 (“Criminal Fraud”) [^4]: Olan, above, at p. 1182. Earlier, in R. v. Renard (1974), 17 C.C.C. (2d) 355 (Ont. C.A.) Martin J.A. struck down the necessity for deception of the victim and also held fraud could be made out where the result of the conduct was to withhold from the victim something to which he was entitled. See also R. v. Kirkwood (1983), 42 O.R. (2d) 65, 5 CCC (3d) 393 (C.A.). [https://www.canlii.org/en/on/onca/doc/1974/1974canlii1440/1974canlii1440.html] [https://www.canlii.org/en/on/onca/doc/1983/1983canlii1953/1983canlii1953.html] [^5]: Criminal Fraud, above, at pp. 100-105. [^6]: Ibid, at p.114 and following. [^7]: R. v. Allsop (1976), 64 Cr. App. R. 29 at pp. 31-32, cited in Olan at p.7 of electronic report. [^8]: Théroux at para. 16. [^9]: Théroux at para. 17. [^10]: Théroux at para. 19. [^11]: Vézina and Côté v. The Queen, [1986] 1 S.C.R. 2 at p. 19, 23 C.C.C. (3d) 481. [https://www.canlii.org/en/ca/scc/doc/1986/1986canlii93/1986canlii93.html] [^12]: Zlatic at para. 26; Théroux at para. 24. [^13]: Théroux at para. 28. [^14]: Exhibit 6-B, Tab 19 [^15]: On the north side of Kingston Road, the intersecting street is Saunders Boulevard, and on the south side it is Guildcrest Drive.