COURT OF APPEAL FOR ONTARIO DATE: 20200420 DOCKET: M51469 (C67983) Harvison Young J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Adekunle Johnson Omitiran Applicant

Counsel: Gabriel Gross-Stein and Riaz Sayani, for the applicant Jeffrey Wyngaarden, for the respondent

Heard: March 31 and April 9, 2020

REASONS FOR DECISION

A. Introduction

[1] The applicant was convicted of several offences arising out of a sophisticated credit card fraud scheme. The trial judge concluded that there was overwhelming body of evidence implicating the applicant as the perpetrator. On January 20, 2020, she sentenced the applicant to 48 months’ imprisonment and imposed a restitution order totalling $486,748.26. He has appealed his convictions and sentence and now seeks bail pending appeal.

[2] I advised the parties on April 9, 2020, that the application was dismissed and that I would release the reasons later. These are those reasons.

B. The offences

[3] The numerous frauds in question involved stealing a customer’s personal information (such as credit card numbers, addresses, dates of birth, and PIN numbers), ordering a replacement credit card, and then using the fraudulent replacement card to make purchases or withdraw money without authorization. The fraudulent scheme was large and sophisticated. The trial judge found the applicant in possession of 313 pieces of mail from over 200 people.

[4] The applicant has been convicted on several fraud related charges before, in 2008 and 2015. He also has three prior convictions for failure to comply with a recognizance, including one while he was being supervised by his wife, one of his proposed sureties (2008), and one while he was awaiting trial for the offences currently under appeal (2018).

[5] At the time of the offences under appeal, the applicant was on probation after being convicted for similar frauds. The offences now under appeal were committed in direct contradiction with his probation terms, which included a prohibition from possessing other people’s credit or debit cards, credit or debit card data, cheques, banking documents, or mail.

C. Positions of the Parties

[6] The applicant submits that there are arguable grounds of appeal and that there is no evidence that he would not surrender, given that he has attended court as required when he was on bail pending trial. He submits further that the public interest requires his release for the following reasons:

(i) There are arguable grounds of appeal. These include the trial judge’s dismissal of an application pursuant to R. v. O’Connor, [1995] 4 S.C.R. 411, in support of the applicant’s alternate suspect defence, and the trial judge’s alleged misapprehension of evidence relating to the use of nicknames, which was relevant to who possessed the Yorkville apartment where much of the incriminating evidence was found.

(ii) While the applicant has a record for financial frauds, he is not violent.

(iii) The release plan controls the risk that the applicant will reoffend. His wife, one of the proposed sureties, will pledge her equity in her house in the amount of approximately $400,000. The deterrent effect of this is very strong given the amount pledged is significantly higher than it was before, and his breach could put his wife and children’s home at risk.

(iv) Recent case law has affirmed that the current COVID-19 pandemic is to be considered in bail hearings. This includes the fact that not only inmates are at greater risk of contracting COVID-19, but also that it is in the public’s interest that the pandemic be contained. A reasonable member of the public will understand the applicant’s release in light of the public interest in preventing a mass outbreak and in preserving scarce medical resources.

[7] For these reasons, the applicant concludes that the reviewability interest outweighs the enforceability interest, and the application should be allowed.

[8] The Crown does not press its arguments that the accused has failed to meet his onus under s. 679(3)(a) and (b) of the Criminal Code, R.S.C., 1985, c. C-46. Rather, it focuses on the public interest ground under s. 679(3)(c). The Crown points to four key factors which, it argues, weigh in favour of enforceability over reviewability and against release:

(i) The grounds of appeal, if not frivolous, are very weak.

(ii) The offences are serious and while not violent, caused financial pressure on many individuals and some financial institutions. The offences raise concerns about protection of the public, particularly in the present difficult economic circumstances created by the COVID-19 pandemic, and given the applicant’s record of reoffending.

(iii) Because the applicant has some three years left on his sentence, he is unlikely to serve his sentence before his appeal is determined.

(iv) The applicant has a demonstrated history of disregarding court orders and committing similar offences.

[9] For all of these reasons, the Crown concludes that enforceability outweighs reviewability, and the application should be dismissed.

[10] Within a day after the parties argued this motion before me on March 31, but before the court released its decision, the Crown advised that it had learned that the police were trying to arrest the applicant on new charges. The new charges are:

• seven counts of breaching his recognizance, which the applicant entered into pending his trial on the offences now on appeal before this court;
• one count of fraud;
• one count of possession of property obtained by crime; and
• one count of possession of identify information.

[11] The charges arise from events occurring very shortly after the applicant was released on bail pending his trial in late 2017, until late 2019. Most of the breaches of his recognizance are relatively minor — such as being out of his home without his surety — but the other charges indicate additional fraudulent behavior.

[12] First, it is alleged that between September and December 2017, the applicant was a party to a $1,035,000 fraud, where one victim was persuaded to transfer money to a purported romantic partner, but instead the funds went to bank accounts controlled by the applicant and his associates. Second, when police executed a search warrant at the applicant's alleged new residence on May 9, 2019, they discovered valuable items such as suits and jewelry, which are suspected to have been obtained by crime. Subsequent analysis of the electronics seized from that residence revealed personal victim information, such as SIN numbers and credit cards.

[13] The Crown submitted that the court should consider this information as a factor in this application. The applicant argued that this was new evidence that should not be admissible. After hearing argument on the point, I concluded that the new evidence was admissible.

[14] On April 9, the parties made additional submissions on the new evidence’s relevance and weight. The Crown agreed with the applicant that the charges should be treated cautiously because they are simply allegations at this point. However, it did submit that the charges add weight to the public safety concern, given the applicant’s record of disregarding court orders and reoffending.

[15] The applicant submitted that as allegations, the new charges should be given little weight. He acknowledged that he had not cross-examined Detective Constable Macdonald on his affidavit, which was sworn in support of the Crown’s application and explains why the charges have not yet been formally laid. Nevertheless, the applicant submitted that there are inconsistencies on the face of the affidavit that should give rise to additional caution about the charges.

D. Analysis

[16] Detective Constable Macdonald states in his affidavit that he has tried unsuccessfully to arrange for the applicant’s arrest on the new charges at the Joyceville Penitentiary, where the applicant is incarcerated. While I agree with the applicant that Detective Constable Macdonald could have arrested him before he was taken to the Joyceville Penitentiary shortly after being sentenced in January, I do not think this impugns the fact that there are new charges and of what they allege. In any case, the new charges are simply allegations and must be treated cautiously as such. As such, I give them limited weight in this application.

[17] I find that the grounds of appeal pass the low bar of “not frivolous” under s. 679(3)(a) of the Criminal Code. The first main ground of appeal is that the trial judge erred in dismissing the applicant’s O’Connor motion for disclosure of third-party records in support of its alternate suspect theory. The third suspect was someone who had also been charged in respect of the same frauds but had been deported before trial. While this is arguable, it is not strong in the circumstances of this case. The applicant’s co-accused testified at the trial and tried to advance the theory that the central occupier of the Yorkville apartment was this person. The trial judge did not accept this evidence and gave thorough reasons for doing so.

[18] The second ground of appeal is that the trial judge misapprehended the evidence relating to the use of a nickname by the appellant. This nickname was critical to the issue of who was in possession of the Yorkville apartment where much of the incriminating evidence was found. Again, a review of the trial judge’s reasons as a whole suggests that this is a weak ground of appeal.

[19] With respect to s. 679(3)(b), there is no evidence that the applicant will not surrender when required. He has done so in the past.

[20] This application turns on the public interest factor under s. 679(3)(c). As I have just indicated, the merits of the appeal are arguable but weak. The central concern in this case is public safety. His offences were not violent, but they were serious, complex, and motivated by greed. The trial judge also noted that the frauds had an economic cost to society as a whole and required a sentence that emphasized denunciation and deterrence.

[21] The applicant also has a significant record both for disregarding court orders and for committing similar frauds. He was on probation when he committed the offences now under appeal.

[22] While I give little weight to the new charges, they do nothing to assuage the court’s concern that the applicant’s release could put more people at risk of credit card and other frauds. As outlined earlier, the applicant is a repeat fraud offender and also has a history of convictions for breaching court orders: see R. v. C.L., 2018 ONCA 470, at paras. 15 and 16; R. v. Mehan, 2016 BCCA 129, 386 B.C.A.C. 1, at para. 29.

[23] Many individuals, businesses, and Canada’s financial institutions are currently under increased stress due to the COVID-19 crisis. Given the applicant’s repeat offending and the current economic climate, protecting the public against the fraudulent schemes is an important factor weighing against the applicant’s release.

[24] The applicant submitted that the release plan will provide the necessary assurance against breaches. The applicant’s wife is his proposed surety and he is to live with her. She is prepared to pledge the entire equity of over $400,000 in her home, which also houses their children. The applicant argues that he would not risk the roof over his children’s head.

[25] I am not prepared to draw that inference. I note that it appears that the applicant has lived apart from his family at various times, though his wife states that he is a good father and that they miss him. In addition, his wife was his surety when the applicant breached his bail by failing to advise the police that he had moved in 2008. I am not satisfied that she is able to control her husband’s conduct or that she would contact the police if he breached any conditions.

[26] I do not agree that the recent COVID-19 outbreak tips the balance in favour of release in these circumstances, though it is a factor to be considered: see, for instance, R. v. Kazman, 2020 ONCA 251, at paras. 16-18; R. v. J.S., 2020 ONSC 1710, at paras. 18-19.

[27] Finally, given the length of his sentence, it is highly unlikely that the applicant will have served his sentence before his appeal is determined.

[28] In this case, given the weak grounds of appeal, the seriousness of the offences of which the applicant was convicted, the concerns about his compliance with any release plan, his record of recidivism, and the length of sentence that was imposed, the public interest analysis favours enforceability over reviewability. I cannot conclude that a reasonable, fully informed member of the public would understand his release to be warranted in these circumstances.

[29] The application is dismissed.

Released: April 20, 2020 “A. Harvison Young J.A.”