Court of Appeal for Ontario

Date: 2018-11-20 Docket: C64229

Judges: Watt, van Rensburg and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Oluyombo Onasanya Appellant

Counsel:

Maurizio Stellato, for the Appellant
Catherine Weiler, for the Respondent

Heard and released orally: November 9, 2018

On appeal from the conviction entered by Justice Riun Shandler of the Ontario Court of Justice on March 30, 2017.

Reasons for Decision

Overview

[1] Following a trial in the Ontario Court of Justice, the appellant was convicted of one count of fraud over $5,000 and one count of the possession of property obtained by crime exceeding $5,000. The appellant appeals his convictions.

[2] At the conclusion of the appeal hearing, we dismissed the appellant's appeal, with reasons to follow. These are those reasons.

Facts

[3] The evidence at trial consisted of an agreed statement of facts and the evidence of the appellant.

[4] The appellant is 26 years old. He came to Canada from Nigeria when he was 17 years old. He completed three years of a business and commerce program at York University. Then, beginning in September 2014, the appellant pursued a course in business management financial services at Humber College.

[5] It was agreed at trial that: (i) in late May 2015, the appellant opened business and personal accounts at a branch of the Royal Bank of Canada ("RBC"); (ii) the appellant opened the accounts in his own name; and (iii) on the application, he indicated that he was the sole proprietor of a business operating under the business name KELLYDICKSON & CO.

[6] There was no dispute that on June 5, 2015, the sum of $30,999.77 was deposited by way of several electronic funds transfers into the business account and that a further $50,000 was deposited in the same way on June 12, 2015.

[7] Both amounts originated from a personal securities account in the name of Kelly Dickson at Manulife Securities ("Manulife"). Ms. Dickson did not authorize the transfer of the funds into the appellant's business account. Ms. Dickson had unknowingly succumbed to identity theft when she had attempted to open documents referred to in an email ostensibly sent by her real estate broker, but actually sent by a person who had hacked into her broker's email account.

[8] As a result of the theft of Ms. Dickson's identity, Manulife received emails from Ms. Dickson's hacked email account directing that monies in her RRSP account be transferred to "Kelly Dickson" at the appellant's RBC business account. Manulife acted on those emails and made the transfers. None of the transfers were authorized by Ms. Dickson.

[9] Between June 8 and 18, 2015, the appellant's business account saw numerous ATM withdrawals, as well as electronic transfers of funds into his personal account. In addition, debit transactions for various retail purchases were charged against both accounts. As of June 18, 2015, when the accounts were frozen, the balance in the appellant's business account was $10,033.94 and the balance in his personal account was $957.29. The unauthorized transfers from Manulife were the only source of the funds that went into the appellant's accounts.

[10] At trial, the appellant testified that in 2015, as a result of an on-line job search, he accepted an offer of employment from a company in Dubai to manage a computer business it wanted to set up in Toronto. The appellant could not recall the name of the person in Dubai with whom he dealt. Also, the appellant said he did not have copies of any texts with the person in Dubai or the number he used to reach that person.

[11] According to the appellant, following the instructions of the person in Dubai, he registered the business name KELLYDICKSON & CO. and opened the RBC accounts. The appellant sent the person in Dubai a void cheque for the business account so that money could be sent to it. According to the appellant, the person in Dubai advised he had a business partner in Canada who would purchase inventory and set up a store.

[12] The appellant testified that he did not have any involvement with arranging for the deposit of money from Manulife into his business account. He stated that he had no contact with Ms. Dickson, her real estate broker, or anyone at Manulife.

[13] The appellant also gave evidence that he did not keep any of the money transferred into the RBC accounts. Instead, he gave all of the withdrawn funds to "Nazir", the business partner of the person in Dubai, at meetings in public places. He also gave Nazir the debit card for the accounts for "a period of a day". The appellant thought Nazir was using the money to purchase computers. He did not believe the money was stolen. The appellant denied using any of the funds to make personal purchases.

The Convictions

[14] The appellant was charged with four counts of fraud in respect of the June 5, 2015 transfers, totaling $30,999.77, from Manulife to his business account and ten counts of fraud in respect of the June 12 transfers totaling $50,000.

[15] The trial judge acquitted the appellant on the counts relating to the June 5 deposits. Although he did not accept the appellant's entire account of events, the trial judge had a reasonable doubt as to whether the appellant knew at the start that he was becoming involved in a fraudulent enterprise.

[16] However, the trial judge found that the state of the appellant's knowledge changed. The nature of the deposits into the business account, the frequent small cash withdrawals, the appellant's contention that he handed over cash to a person whom he only knew by his first name, and the use of the withdrawals to make purchases unrelated to the business were inconsistent with any legitimate business purpose.

[17] As well, the trial judge rejected the appellant's evidence that the debit card purchases were made by or on behalf of Nazir. He found the appellant was responsible for those purchases.

[18] The trial judge convicted the appellant of possession of property obtained by crime. He also concluded the appellant had engaged in fraudulent conduct by allowing his two accounts to be used for fraudulent purposes and distributing those funds. He found the appellant guilty as a party to the fraud of Kelly Dickson in relation to the ten counts concerning the June 12 deposits, but conditionally stayed nine counts, registering one conviction for fraud over $5,000.

Issues on Appeal

[19] The appellant focuses his grounds of appeal on the trial judge's findings regarding the fault element of both offences. In oral argument, the appellant clarified that he was not arguing the trial judge's verdicts were unreasonable; nor does he contend the trial judge erred in his understanding of the legal principle of wilful blindness; nor does he submit the trial judge's findings were tainted by palpable and overriding error. Instead, the appellant submits that the evidence before the trial judge could not support a finding that the appellant was wilfully blind.

Analysis

[20] The appellant submits that since he testified he had no suspicions about what was going on, the trial judge did not have any evidentiary basis upon which to find that he was wilfully blind to the source of the money deposited into his accounts. As well, the appellant contends that there was no evidence he spent any of the money on himself. As a result, there was no basis for the trial judge to find that the appellant knew that all or part of the property was obtained by the commission of an indictable offence: Criminal Code, s. 354(1).

[21] As to the fraud conviction, the appellant argues there was no evidence that he had direct knowledge the funds were coming from a fraud and, as a result, there were no facts to which the trial judge could apply the doctrine of wilful blindness. As a result, there was no basis on which the trial judge could find that the Crown had proved beyond a reasonable doubt the fault element for fraud – that is, (i) subjective knowledge of the prohibited act and (ii) subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk): R. v. Zlatic, [1993] 2 S.C.R. 29, at p. 43.

[22] We are not persuaded by either submission.

[23] Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the fault element of the crime: R. v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411, at para. 21. Wilful blindness imputes knowledge to an accused where his suspicion is aroused to the point where he sees the need for further inquiries but makes a deliberate choice not to make those inquiries: R. v. Burnett, 2018 ONCA 790, at para. 142.

[24] The evidentiary threshold for wilful blindness may be met by an accused's own evidence, where it discloses inherently suspicious circumstances characterized by unclear details and at odds with common sense and human experience: R. v. Morales (2006), 81 O.R. (3d) 161 (C.A.), at para. 26. The threshold may also be met by the cumulative effect of several strands of circumstantial evidence from different sources woven together in a mosaic: Burnett, at para. 143.

[25] The trial judge's reasons disclose that he rested both convictions on the combination of the inherently suspicious circumstances disclosed by the appellant's evidence and the cumulative effect of the circumstantial evidence.

[26] In concluding that by June 11, 2015 – the day before the second deposit – the appellant "was in full knowledge of facts that this was no longer any kind of legitimate business enterprise," the trial judge relied upon evidence of: (i) the amount of money deposited into the business account; (ii) the nature of the numerous withdrawals in a short period of time – as graphically presented on the schedule to the respondent's factum; and (iii) the frequent Interac purchases unrelated to any legitimate business purpose.

[27] As well, the trial judge clearly explained why he rejected the appellant's evidence that the Interac purchases were made by or on behalf of Nazir. His adverse findings about the appellant's credibility were based not only on inconsistencies in the appellant's evidence, but also on certain agreed facts, such as the videos recording the appellant withdrawing cash from ATMs.

[28] The trial judge found that by June 11, 2015, the appellant was "in full knowledge of facts that this was no longer any kind of legitimate business enterprise." Then, on June 12, 2015, "another 10 separate deposits were made into [the appellant's] business account amounting to $50,000." This led the trial judge to find that the appellant "knew that those funds were obtained by crime and that inquiries had to be made as to the source of those funds and what role his registered business and business account was being used for. The defendant took no such steps, he made no such inquiries."

[29] The trial judge then examined the appellant's conduct following the second set of deposits: he continued to make frequent cash withdrawals and Interac purchases unrelated to any business purpose.

[30] Taken together, that evidence met the evidentiary threshold for wilful blindness. Consequently, we do not accept the appellant's submission that the trial judge applied a standard of negligence or recklessness to the evidence. Indeed, the words "should" or "ought" do not appear in the reasons.

[31] We see no misapplication of the principle of wilful blindness to the facts found. As a result, we see no basis for appellate intervention either in the conviction for fraud over or in the conviction for possession of property obtained by crime. The combination of the inherently suspicious circumstances disclosed by the appellant's evidence and the cumulative effect of the other findings of fact made by the trial judge operated as an adequate evidentiary basis for the trial judge's finding that the appellant, at a minimum, was wilfully blind to the source of the funds deposited into his account.