COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Watson, 2017 ONCA 346

DATE: 20170428

DOCKET: C60978

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carlton Watson

Appellant

Paul Alexander, for the appellant

Deborah Krick, for the respondent

Heard: April 25, 2017

On appeal from the conviction entered by Justice John R.
    Sproat of the Superior Court of Justice on February 13, 2015, with reasons
    reported at 2015 ONSC 710, [2015] O.J. No. 715, and from the sentence imposed
    on September 14, 2015.

ENDORSEMENT

A.

Introduction

[1]

The appellant, Carlton Watson, was a Peel Regional Police (PRP)
    officer. He was charged with 46 offences related to fraud, making false documents,
    breach of trust and obstruction of justice. The charges related to nine motor
    vehicle accident reports (MVARs) prepared by Watson in 2010. These reports related
    to accidents that in fact never occurred and resulted in insurers paying claims
    and incurring costs totalling over $1,000,000.

[2]

At trial, the appellant conceded the
actus reus
of the offence.
    The issue was whether Watson was a knowing participant in the fraud scheme.

[3]

The trial judge concluded that he was and convicted him on all but six counts.
    He was sentenced to five years imprisonment.

[4]

In relation to his conviction and sentence, the appellant raises the
    following grounds of appeal: (1) the trial judge engaged in speculation in
    finding that the appellant participated in the fraud; (2) the trial judge
    failed to properly apply the principle in
R. v.
Kienapple
, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524
;
    and (3) the trial judge erred in imposing a five-year sentence.

B.

The Conviction Appeal

[5]

At the outset of his oral submissions, the appellant indicated that he
    was not submitting that the verdict was unreasonable. The appellant submits,
    however, that in convicting him, the trial judge engaged in impermissible
    speculation in three respects.

[6]

First, the appellant submits that the trial judge engaged in speculation
    with respect to the tickets issued under the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33. Of the nine MVARs, eight indicate that a ticket was
    subsequently issued. The Crowns position was that tickets were issued as part of
    the fraud scheme because it would look suspicious if no one involved in the
    accidents was charged.

[7]

The PRP procedure for processing the tickets was that officers would leave
    the ticket forms in a basket at the station at the end of their shift. The tickets
    would then be entered into the computer system for processing. Watson testified
    that he intended that all of the tickets he issued be processed, and so he would
    have followed the PRPs usual procedure. The trial judge rejected his evidence.
    Only one ticket was entered into the system. This was a ticket that was issued
    to a person who was initially involved in setting up the fraud, and he was
    convicted in absentia. The trial judge was entitled to draw the inference that
    the appellant issued provincial offences tickets but deliberately did not
    submit them into the court system because he was a participant in the fraud.

[8]

The appellants second submission is that the reason the trial judge
    gave for rejecting the appellants evidence as to how he filled out the MVARs
    was speculative.

[9]

The Crowns position at trial was that the short gap recorded on the
    MVARs between the time of the collision and the time it was reported  between
    zero and fifteen minutes  was chosen deliberately to make it appear each time as
    if the appellant was at the scene of the accident (when, in fact, he was not).
    The appellant denied this suggestion and testified that he did not notice the
    peculiarity about the times, as he did not fill out the entire MVAR at the same
    time. The trial judge rejected this evidence and found that, logically, one
    would fill in the boxes one after the other on the form. In rejecting Watsons evidence
    on this issue, the trial judge did not engage in speculation, but merely used
    logic and common sense.

[10]

Third, the appellant submits the trial judge engaged in impermissible
    speculation in rejecting the appellants evidence that he was prepared to
    provide an MVAR to the Blackwoods based only on their say-so, with respect to
    the collision involving Clifton and Conrad Blackwood. The trial judge rejected the
    appellants evidence regarding the Blackwood collision on the basis that he was
    aware that the Blackwoods, who were twins, had committed immigration fraud by
    travelling on one passport.

[11]

The Crown agrees that, standing alone, this reason was not sufficient to
    reject the appellants evidence in relation to these counts but submits that
    this was only one of the reasons the trial judge gave. We agree with this
    submission. At para. 97 of the trial judges reasons, he summarized his
    findings of fact, based only on the appellants own evidence together with the
    circumstantial evidence, and without relying on the evidence of the other
    participants in the scheme, including Clifton Blackwood. The trial judge found
    that the appellant had prepared nine MVARs without attending the scene or
    speaking to the drivers and passengers; the appellants notes relating to the
    nine MVARs were intentionally deceptive; the appellant had 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; and, in most
    cases, the at fault driver had been charged, but the tickets were intentionally
    not submitted to facilitate the fraudulent scheme and lessen the risk of
    detection. Reading the trial judges reasons as a whole, therefore, the
    immigration fraud was only one of the many reasons the trial judge identified for
    rejecting the appellants testimony respecting this count.

[12]

For all of these reasons, the appeal as to conviction is dismissed.

C.

the
Kienapple
Principle

[13]

The appellant submits that the trial judge erred in not applying the
Kienapple
principle to the convictions for fraud and forgery because the fraud charges
    particularized the use of a forged MVAR in committing them. In our opinion,
    this submission does not distinguish this courts decision in
R. v. Dwyer
,
    2013 ONCA 34, 301 O.A.C. 191, where, at para. 6, Rosenberg J.A. stated:

In my view, the
Kienapple
rule does not apply. The
    rule precludes multiple convictions for different offences where there is both
    a factual and legal nexus connecting the offences. While there is a close
    factual nexus, the legal nexus is missing. The fraud charge and the charges of
    using forged documents have different elements and describe different criminal
    wrongs. [Citations omitted.]

[14]

Similarly, the appellants argument that the
Kienapple
principle should have been applied, even though there were different victims
    involved in each of the fake accidents, finds no support in law and is contrary
    to
R. v. Kinnear
(2005), 199 O.A.C. 323, at para. 38.

[15]

Accordingly, we would not give effect to this ground of appeal.

D.

The Sentence Appeal

[16]

This was a very serious offence. A significant penitentiary term was
    required despite the appellants mitigating circumstances. The fact that the
    appellant, a police officer who is sworn to uphold the law and protect the
    public, abused his office by engaging in an organized fraudulent motor vehicle
    accident scheme is a significant aggravating factor. The five year sentence
    imposed was not demonstrably unfit. Accordingly, although leave to appeal
    sentence is granted, the sentence appeal is dismissed.

Karen
    M. Weiler J.A.

K.
    Feldman J.A.

Grant
    Huscroft J.A.