COURT OF APPEAL FOR ONTARIO
Feldman, Cronk and Roberts JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nosakhare Aghayere
Appellant
Mark C. Halfyard and Breana Vandebeek, for the appellant
Michael Perlin, for the respondent
Heard: January 14, 2016
On appeal from the convictions entered on September 15, 2011 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury.
Introduction
1The appellant was convicted of a series of offences arising from a large scale internet fraud scheme operated from his home: i) conspiracy to commit fraud on the public of an amount exceeding $5,000; ii) knowingly possessing fraudulent instruments/machinery to be used to commit forgery; and iii) possession of property obtained by crime having a value of less than $5,000. A tenant in the appellant’s house, Courage Idahosa, was charged with the same three fraud-related offences and pleaded guilty. In so doing, he implicated others, but not the appellant, in the commission of the fraud.
2The appellant appeals from his convictions.
Issues
3The appellant advances one ground of appeal. He argues that the trial judge erred by admitting, as similar act evidence, evidence tendered by the Crown regarding his convictions in 2003 of four fraud-related offences, to which he had pleaded guilty. The incidents in question occurred in 2000; they involved the alteration of stolen corporate cheques and the depositing of the altered cheques, by the appellant, in automatic teller machines (ATMs). The similar act evidence consisted of certified copies of the indictment and the transcript of the appellant’s 2003 guilty plea proceeding. The appellant submits that the trial judge erred by concluding that this evidence constituted admissible similar act evidence and by relying on it as general propensity evidence.
Discussion
(1) Nature of the Fraud
4In brief, the fraud in issue at trial involved the theft or interception, by unknown persons and means, of valid corporate cheques, the subsequent use of chemicals to modify or “wash” some of the original information on the face of the cheques, and the alteration of either or both the amounts of the cheques and the named payees. In tandem with these activities, one of the participants in the fraudulent scheme, known as a “catcher”, would then approach members of the public in Canada or the United States over the internet, using various scams and pretexts to dupe the targeted victims into accepting and cashing the cheques and remitting the funds to the fraudsters. The evidence at trial suggested that the scheme as implemented involved hundreds of fraudulent cheques and victims, and sizable monetary losses to the victims.
(2) Defence Position at Trial
5At trial, the appellant conceded that he knew the internet fraud had been carried out at his home. However, he denied that he had anything to do with it. He maintained that Mr. Idahosa and another tenant in his house had effected the fraud, without his participation.
(3) Challenge to the Similar Act Evidence
6In our view, the appellant’s challenge to the admission and use of the similar act evidence fails. We say this for three main reasons.
7First, we see no error in the trial judge’s conclusions that the proposed similar act evidence was relevant to the issues before the court given the purposes for which it was tendered and, further, that the similarities between the appellant’s admitted prior conduct and the offences alleged were sufficient to overcome the objective improbability of coincidence.
8The trial judge accepted the Crown’s argument that the similar act evidence was relevant: i) to rebut the appellant’s anticipated defence that he was not an active participant in the offences alleged and that it was coincidental that the crimes were run out of his house; ii) to the issue whether the appellant possessed and accessed the information located in his home that evidenced the fraudulent acts; and iii) to the question whether the charges alleged involved a plan, system or design effected by multiple persons.
9In the context of these issues, the trial judge assessed the similarities and dissimilarities between the prior frauds and the charges alleged, as well as the critical question whether the probative value of the evidence of the prior frauds in relation to the particular issues for which it was proffered outweighed its potential prejudice, thereby justifying its reception: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. We see no flaw in his analysis of these issues or in his application of the governing principles concerning the admission of similar act evidence.
10We begin with the facts regarding the prior frauds, as admitted by the appellant at his guilty plea proceeding. The admitted facts included the following: i) the four counts of fraud concerned four separate incidents when the appellant was observed attending banks and ATMs to deposit cheques or withdraw funds deposited using some of the cheques; ii) each of the cheques had been issued by and had been made payable to different corporate persons; iii) each of the cheques had been stolen; iv) each of the cheques had been modified by alteration of the name of the payee and/or the stated value of the cheque; and v) on each occasion, the appellant took steps to hide his identity by attempting to disguise his appearance.
11In addition, both Crown counsel and defence counsel submitted at the plea proceeding, and the trial judge found as a fact, that the appellant did not act alone in committing the 2000 offences.
12These admitted facts formed the backdrop to the trial judge’s similar act analysis. In his ruling, the trial judge recognized that a period of seven years separated the appellant’s prior frauds and the predicate offences and that there were dissimilarities “in the details” of the frauds (at paras. 45–46 and 52). However, based on the admitted facts concerning the prior frauds and the alleged circumstances of the predicate offences, the trial judge identified numerous similarities between the crimes:
(1) the use of multiple, intercepted and stolen cheques, issued by numerous different corporate payors;
(2) critically, the alteration of the stolen cheques, to change the named payees and the stated value of the cheques;
(3) the involvement of more than one person, over a period of time, in committing the offences;
(4) the creation and implementation of a particular plan, over time, to victimize either the drawers of the cheques or other innocent third parties; and
(5) the assumption of different identities (the appellant’s use of third party bank accounts to access funds (the prior frauds) and the fraudsters’ use of different identities when targeting potential victims (the offences charged).
13In the trial judge’s view, these factors established sufficient similarity between “the basic foundation of both sets of crimes, the use and alteration of cheques and the creation of a plan [to defraud]” so as to warrant the admission of the similar act evidence for the limited purposes he described (at paras. 57 and 61). We agree.
14Second, and importantly, apart altogether from the similar act evidence, the Crown’s case against the appellant was formidable. The trial judge made the following findings of fact, without reference to the similar act evidence:
numerous documents and emails seized by the police at the appellant’s home connected the appellant to the frauds;
references in the fraud-related documentation found at the appellant’s house referenced names and email addresses used by the appellant;
both the desktop computer found in the appellant’s home office and a laptop computer found in the room occupied by Mr. Idahosa, the appellant’s co-accused, were used in the fraud;
the appellant admitted to the police in a videotaped statement that he was at least “a middleman” who connected people with different required skill sets; and
the appellant’s testimony at trial confirmed that he knew that a cheque-based internet fraud was being committed within his home.
15These findings are amply supported by the evidentiary record and are not challenged on appeal. They do not depend on the similar act evidence. In our view, based on these findings, even if the similar act evidence should not have been admitted, the strength of the Crown’s case was such that the verdicts would have been the same if the evidence had not been received: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 36.
16Third, we do not accept the appellant’s contention that the trial judge relied on the similar act evidence for impermissible, general-propensity reasoning. In his reasons, the trial judge made the crucial findings described above prior to any mention of the similar act evidence. Having first made these findings, he then concluded, at para. 122, that the evidence against the appellant was “overwhelming”, before commenting briefly on the similar act evidence.
17Further, we see nothing in the trial judge’s reasons indicating that he relied on the similar act evidence to infer guilt on the prohibited logic that the appellant’s prior fraud convictions demonstrated that he was the type of person who would engage in fraud. Rather, because of the similarities between the crimes, the fact that the internet fraud scheme was being operated out of the appellant’s home and with his knowledge enhanced the likelihood of his participation in the offences charged. The prior frauds to which the appellant had pled guilty furnished evidence of specific propensity that bore distinctive features that reappeared in the charged conduct: the use of altered and stolen cheques; a repetitive plan or scheme, over time, using stolen cheques; and the appellant’s self-representation “as someone other than himself”.
Disposition
18For the reasons given, the conviction appeal is dismissed.
Released: (K.F.) January 19, 2016
“K. Feldman J.A.”
“E.A. Cronk J.A.”
“L.B. Roberts J.A.”