



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Posthumus, 2020 ONCA 760

DATE: 20201202

DOCKET: C64858

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jan Posthumus

Appellant

Richard Posner, for the appellant

Andrew Cappell, for the respondent

Heard: October 8, 2020 by video conference

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

REASONS FOR DECISION

[1]

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

[2]

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

[3]

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

The Conviction Appeal

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

The erroneous inference

[9]

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

[10]

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

[11]

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

[12]

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

[13]

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

[14]

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

Misapprehension

of

evidence

[15]

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

[16]

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

[17]

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

[18]

The
    appeal against conviction is therefore dismissed.

The Sentence Appeal

[19]

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

[20]

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

[21]

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

Disposition

[22]

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

K. Feldman J.A.

E.E. Gillese J.A.

B.W. Miller J.A.


