R. v. Mojadiddi, 2021 ONCA 796

Court of Appeal for Ontario

Date: 20211110 Docket: C69128

Tulloch, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Sakia Mojadiddi Appellant

Counsel: Sakia Mojadiddi, acting in person Dan Stein, appearing as duty counsel Stephanie Lewis, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the sentence imposed on January 20, 2021 by Justice Paul T. O’Marra of the Ontario Court of Justice.

Reasons for Decision

[1]

Background

The appellant pleaded guilty to one count of fraud over $5,000. The facts underlying the guilty plea are as follows.

2Over the course of 10 years, the appellant defrauded 47 people of $1,077,584 in her role as the president of the Afghan Refugee Relief Organization (“ARR”). Between 2007 and 2017, 47 people went to the appellant for help because their families were in danger and they were trying to secure safe passage to Canada for themselves or their relatives and friends.

3The appellant charged a registration fee and an office paperwork fee and required a financial deposit to start the sponsorship process. She met with family members who were interested in sponsoring their foreign family members. Neither the appellant, nor ARR, or ARR employees held a sponsorship designation from Immigration, Refugees and Citizenship Canada (“IRCC”). No one at the ARR was a certified immigration consultant. None of the refugees’ applications was ever filed with the IRCC. The appellant was arrested in July 2017, but she continued to request additional funds from victims until her subsequent arrest for additional fraud charges in February 2018.

4Based on the appellant’s acceptance of the agreed facts, the trial judge registered a conviction against her for one count of fraud over $5,000. The trial judge made a restitution order for the appellant to pay the sum of $946,083.99. He also ordered a fine in lieu of forfeiture in the total amount of $1,077,584. In default of payment of the fine, a five-year term of imprisonment would be imposed.

5The trial judge found that of the $1,077,584 proceeds of fraud, $946,083.99 remain outstanding. He calculated the amount outstanding as follows:

The total proceeds taken from the 47 victims as a result of this swindle was the sum of $1,077,584. Six victims were able to recover $71,500. On November 14, 2019, Morassa Rizvi, a former co-accused, re-paid $60,000. Thus, the net amount that remains outstanding as a result of Ms. Mojadiddi’s criminal enterprise is $946,083.99.

Ms. Mojadiddi has not made any restitution to any victims. Some monies were returned to several victims; however, those funds were traced to payments made by other victims.

[6]

Issues on Appeal

The appellant has abandoned her conviction appeal and makes two submissions on this sentence appeal. First, she argues that the sentence is excessive. Second, she submits that the trial judge failed to account for payments that have been made to victims when calculating the amount of the fine in lieu of forfeiture.

[7]

Whether the Sentence is Excessive

The first submission may be dealt with summarily. This was a particularly egregious fraud. Not only did the victims lose money, but many of the people seeking the appellant’s help also endured hardship in following the appellant’s instructions. For example, on the appellant’s advice, many left their homes to travel to other countries in order to make their refugee application. This was also a complex fraud, carried out over many years, against multiple vulnerable victims. In these circumstances, the penal portion of her sentence is on the lenient end of the spectrum. Indeed, we would not wish anything in these reasons to be interpreted as saying that such a low sentence is appropriate in complex fraud cases.

[8]

Fine in Lieu of Forfeiture

The second submission was advanced by duty counsel. He argued that the trial judge should have imposed a fine in lieu of forfeiture in the same amount as the restitution award. To do otherwise, he submits, would be to fail to give credit to the amount of $131,500 that has been repaid to the victims.

9The difference is significant because under s. 462.37(4)(vi) of the Criminal Code, R.S.C. 1985, c. C-46, where the fine exceeds $250,000 and is less than $1,000,000, the court shall, upon default of payment of the fine, impose a term of imprisonment of not less than three years and not exceeding five years. However, under s. 462.37(4)(vii), if the fine exceeds $1,000,000, then the court shall, upon default of payment of the fine, impose a term of imprisonment of not less than five years and not exceeding ten years.

10In response to this submission, the Crown takes the position that the trial judge had no discretion in fixing the amount of the fine in lieu of forfeiture and was obliged to set the fine at the full amount of the proceeds of the fraud, being $1,077,584.

11We do not give effect to this ground of appeal. The purpose of a fine in lieu of forfeiture is not restitutionary. Instead, such an order is made to ensure that the offender is deprived of the proceeds of crime, and to deter offenders and others from committing designated offences. Forfeiture and fine in lieu of forfeiture orders are not a means by which to punish offenders, but a means by which to replace the proceeds of crime: R v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras. 16, 23, 25, 26 and 28; R. v. Schoer, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 93.

12In the case at bar, in fixing the fine in lieu of forfeiture, the appellant should not receive any credit for the payments received by some of the victims.

13The $60,000 that was paid by her co-accused has reduced the amount of restitution but has not reduced the proceeds of crime that the appellant has received.

14Regarding the $71,500 recovered by some of the victims, it is worth reiterating that these funds were not repaid by the appellant but were instead obtained from other victims. In these circumstances, as Fairburn JA (as she then was) concluded in Schoer, at paras. 110-11, a reduction in the amount of the fine in lieu of forfeiture is not appropriate:

For the reasons given above, I would not reduce the fine in lieu of forfeiture. I defer to the trial judge’s finding of fact that the payment to Mr. Dollenkamp came from commingled funds. It was not the appellant’s money that paid Mr. Dollenkamp, but the commingled funds of complainants and other victims not before the court that furnished that payment.

In the context of this Ponzi-type scheme, the use of complainants’ funds to pay complainants does not reduce the amount of property that constitutes the “proceeds of crime”. While paying the civil judgment properly reduced the amount of restitution owing to Mr. Dollenkamp, the sentencing judge was right to conclude that it should not reduce the fine in lieu of forfeiture. The value of the property that was in control of the appellant is the value to be attached to the fine. In this case, that is $403,750.

15On the facts of this case, it is unnecessary for us to consider the Crown’s position that a sentencing judge has no discretion in fixing the amount of a fine in lieu of forfeiture to take into account any amounts paid in restitution.

[16]

Disposition

For the foregoing reasons, the conviction appeal is dismissed as abandoned. We grant leave to appeal sentence but dismiss the sentence appeal.