Court of Appeal for Ontario

Date: 2018-03-08 Docket: C62877

Judges: Rouleau, Huscroft and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Wisdom Lubansa Appellant

Counsel

Melanie Webb, for the appellant

Mabel Lai, for the respondent

Hearing and Release

Heard and released orally: March 05, 2018

On appeal from: The conviction entered on April 25, 2016 and the sentence imposed on September 9, 2016 by Justice M. Speyer of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant argues that the trial judge erred in concluding that his detention by police was lawful. In our view, the officers in this case had authority to investigate a vehicle that was parked in an empty community centre parking lot at 3:00 a.m. with its motor running and lights on.

[2] This investigation could, as here, include asking the driver to produce identification and vehicle information. That investigation continued to be reasonable as the officer discovered that there was a problem with the license plate attached to the vehicle. Further investigation revealed that the plate was linked to an identity theft.

[3] The trial judge did not therefore err in dismissing the appellant's ss. 8 and 9 Charter application.

[4] In this court, the appellant also alleges a ss. 10 (a) and (b) Charter breach. These issues were not raised in the court below. This court does not have the benefit of any finding or analysis by the trial judge and, as a result, we decline to address this issue for the first time on appeal.

[5] The appellant further submits that the trial judge erred in finding him guilty of three counts of fraud over $5000. It is not in dispute that he was found in possession of documentation relating to 12 bank accounts that were opened using false names and counterfeit documents. These accounts put the bank's pecuniary interest at risk.

[6] The trial judge properly instructed herself as to the elements of fraud.

[7] On the factual record in this case, it was open to the trial judge to conclude that there were acts of deceit, the banks had been placed at pecuniary risk, the appellant was aware of this risk and that the risk exceeded $5000.

[8] Finally, the appellant also seeks leave to appeal sentence arguing that the sentence imposed was excessive. In our view, in reaching her decision on sentence, the trial judge carefully considered all of the aggravating and mitigating circumstances. She committed no error in principle and we see no basis to interfere with the sentence imposed.

[9] For these reasons, the appeal from conviction and sentence are dismissed.

Paul Rouleau J.A.

Grant Huscroft J.A.

Fairburn J.A.