Court File and Parties
Ontario Court of Justice
Date: April 25, 2014
Court File No.: Regional Municipality of Durham 998 13 RA25258
Between:
Her Majesty the Queen
— and —
Victor Akinyemi
Before: Justice J. De Filippis
Heard: January 24, 27, 29, February 7, & April 2, 2014
Reasons for Judgment released on: April 25, 2014
Counsel:
- Mr. T. Boodoosingh — counsel for the Crown
- Ms C. Claxton — counsel for the Defendant
Reasons for Judgment
De Filippis J.:
Introduction
[1] The defendant is charged with public mischief, attempted fraud over $5,000.00, false pretence, and perjury. The Crown alleges that he falsely reported the theft of his motor vehicle for the purpose of defrauding an insurance company and in so doing, obtained a Proof of Loss statement by false pretence and lied under oath. The Crown called five witnesses, tendered business records, and proffered a statement made by the defendant to a police officer as well as one he made under oath. The Defence elected not to call evidence. Credibility is not a significant issue in this case. The primary questions are these: Is the defendant's statement to police voluntary? Can the Crown rely upon the defendant's statement under oath with respect to all charges or is it admissible only to prove perjury? Is corroboration required with respect to the perjury count? What inferences should be drawn from all the evidence?
[2] I find the defendant guilty of all charges. These are my reasons.
The Evidence
[3] The motor vehicle that is the subject of this prosecution was previously owned by Mohamed Shaikh. In October 2011 he placed an advertisement in Kijiji offering to sell a 2004 Land Rover (Range Rover) for $16,000.00. On the 11th day of that month he negotiated a sale of the vehicle for $14,500.00 to a tall black man with a beard and short hair. This man produced a certified cheque and directed that the transfer of ownership be in the name Victor Akinyemi at 46 Thackery Drive, Ajax. There is no dispute that this is the defendant's name and address. Mr. Shaikh testified that he gave only one used key for the Range Rover to the purchaser and that the latter told him the vehicle would be exported to Ghana.
[4] Faisal Savja is the manager at Land Rover Metro West. He described the applicable procedure when a person wants to order a new key for vehicles manufactured by the company: All North American requests for a new key to be cut are directed to a single location in New Jersey. Before doing so, an employee with the local dealer must personally meet the owner of the motor vehicle and verify identity with proof of ownership and a driver's licence. Once the new key has been made it is sent to the local dealer and synchronized to the motor vehicle. This process is intended to ensure that a new key can only be ordered by a registered owner and made operable for the particular vehicle.
[5] Mr. Savja identified an invoice from his dealership that shows that on 20 October 2011, a new key was ordered for a Range Rover by Victor Akinyemi, resident at 46 Thackery Drive, Ajax, with a cellular phone number 416-624-9836. Attached to this business record is a copy of a standard "ownership document" issued by the Ontario Ministry of Transportation, bearing the same name and address, for a vehicle with plate number BMPK 765 and VIN SALME1142A153868. As will be discussed below, this personal and vehicle information matches that provided by the defendant in reporting the theft of his motor vehicle to police and in completing a Proof of Loss statement with his insurance company. There is no question that this is the motor vehicle sold by Mr. Shaikh nine days earlier. The cost of cutting the new key was $348.24.
[6] Nimchand Seegobin is an automobile mechanic based in Markham, Ontario. He testified that he has serviced the defendant's motor vehicles in the past, including on two occasions in 2011. He identified the relevant invoices for a safety inspection on October 31st and miscellaneous repairs on November 2nd with respect to a Land Rover (Range Rover). Mr. Seegobin stated that a Range Rover is a "higher end model of Land Rover". The repairs cost $1,111.69 and the defendant paid in cash. Mr. Seegobin also testified that on both occasions the defendant arrived at his shop with another man and that on one of those occasions the defendant told him he was taking the motor vehicle to Africa and that he goes "back and forth there". In cross examination, the witness was challenged about how he could recall this conversation after two years. Mr. Seegobin conceded he may not have been told this by the defendant but, rather, overheard him discussing it with the other man. He also conceded he may have assumed the conversation was about the Range Rover because he was servicing that vehicle at the time. In this regard, he noted that was working on the car about 10 feet away from the defendant and his companion when the words in question were spoken.
[7] On 3 January 2012, the defendant reported the theft of his 2004 Land Rover (Range Rover), plate no. BMPK 765 and VIN SALME1142A153868. The defendant stated he had visited a friend at 35 Westport Dr in Ajax and parked the vehicle on the street while he stayed overnight. In the morning he awoke to find the car gone. The report was taken by P.C Williams.
[8] On 27 February 2012, Det. MacFarlane called the defendant and invited him to come to the police station. He came the next day at noon. The hour long interview was videotaped. A voir dire was conducted to determine if the defendant's statement is voluntary. These reasons address that issue.
[9] The officer told the defendant he wanted to discuss his report of the missing motor vehicle and added that he was not under arrest, could contact counsel, and was free to leave at any time. The defendant agreed to be interviewed. It began with open ended questions about the defendant's personal circumstances and how the motor vehicle went missing. It ended with confrontational questions and an accusation that the defendant falsely reported the theft of the Range Rover.
[10] In response to questions from Det. MacFarlane, the defendant advised as follows: He was born in Ottawa and married his wife in Nigeria. They have three children. After his wedding, he travelled to Nigeria in 2008 and 2009. He is employed as a manager at Ontario Power Generation at a salary of $113,000.00 per year. His wife is a personal support worker at a salary of about $25,000.00 per year. His total debt is about $420,000.00, including a mortgage, several credit cards, a car loan, and utilities. The defendant acknowledged that he has "high debt relative to income" but insisted he was managing it. He stated he paid $21,000.00 for the Range Rover in question and that it went missing from where he had parked it in front of a friend's home during a night that he had spent there. He denied knowledge of who might have stolen the vehicle. The defendant conceded that his wife had previously been indemnified through insurance in the amount of about $55,000.00 for another stolen Range Rover and that his father had reported the theft of his Dodge Caravan. The latter vehicle was insured in the defendant's name.
[11] Towards the end of the interview the following exchanges occurred:
Police Officer: What did you think you were coming here for?
Defendant: No clue.
P.O: You haven't asked me if I found the car, why not?
D: I don't know why I'm here.
[12] After noting that none of the three vehicles reported stolen by the defendant, wife, and father have ever been found, the officer accused the defendant of "staging the theft" to sell the Range Rover abroad and make an insurance claim, all to resolve his debt problems. The defendant protested that he is a "hard worker and making the payments needed to service [his] debt".
[13] Brian Smith is a former police officer who now works as an Investigator with Desjardins General Insurance Group. He confirmed the defendant purchased an insurance policy for the Range Rover in question. He met with the defendant on 11 January 2012 with respect to the latter's claim on the policy arising from the theft of the motor vehicle. The defendant completed two documents; a Statement of Loss and Proof of Loss. The defendant also turned over a key for the Range Rover. Mr. Smith described it as "a brand new key".
[14] The documents completed by the defendant contain personal information that matches that provided with respect to the purchase of the Range Rover and the order for a new key. The Statement of Loss records a previous claim made by the defendant with respect to the Dodge Caravan and includes the following assertions: There is one key for the Range Rover, currently in the possession of the defendant. He purchased the vehicle at "end October 2011" for $21,000.00 (by means of an $11,000.00 money order and $10,000.00 cash) from an unnamed person that he "will supply at later time". The Proof of Loss is a document under oath in which the defendant deposed that he purchased the Range Rover on 5 October 2011 and claimed indemnity for the purchase price of $21,000.00 less a $500.00 deductible.
[15] On 31 January 2013, the defendant was examined at the officers of the Durham Reporting and Mediation Services in Whitby. He was represented by counsel at the examination. He made a statement under oath to Kevin Griffiths, a person authorized by law to permit it to be made. Mr. Smith testified that such examinations are at the invitation of the insurance company. The defendant was not required to attend. However, his failure to do so could result in an adverse inference by the insurance company with respect to the claim under consideration.
[16] The defendant's assertions at the examination under oath, include the following:
- He purchased the Range Rover from a stranger who had advertised on the Kijiji website
- The seller's first name was Mohamed
- He negotiated a price of $21,000.00 with Mohamed and paid $10,000.00 in cash and $11,000 by money order
- He picked up the vehicle from the seller in Brampton and received the ownership documents from him
[17] The (amended) perjury count in this trial refers specifically to statements made during the aforementioned examination about the key to the Range Rover. The defendant stated that he had received only one key from the seller and that he turned that key over to Mr. Smith when he claimed indemnity for his loss.
Q: Is the key the seller gave you was (sic) the key that you gave to the Personal?
A: That is correct.
Q: And that's the only key that you've ever had to the Land Rover?
A: That is correct.
Q: And you've never acquired any other keys to the Land Rover?
A: No.
A: I have that correct, you, you didn't – you only had one key, you've only ever had one key to the Land Rover?
A: That is correct, that's right.
[18] The defendant was charged with the present offences almost 15 months after the above noted interview. Det. MacFarlane explained that during this time he obtained information from the Crown witnesses in this matter and investigated similar cases that he eventually concluded had nothing to do with the defendant. He received the key to the Range Rover that the defendant had turned over to Mr. Smith upon filing his Proof of Loss statement.
Analysis and Findings
[19] The Crown has the onus of proving guilt beyond a reasonable doubt. Defence counsel submits that the prosecution case depends on proof that (1) the theft of the motor vehicle was staged, (2) it was shipped to Africa, and (3) the defendant falsely claimed it was stolen to defraud his insurance company. Counsel argues that the evidence is entirely circumstantial and I cannot be certain of the identity of the person who purchased the Range Rover and ordered a new key for it. It is submitted that the Crown has failed to meet the criminal law standard of proof and that the charges must be dismissed.
[20] The matter of the key is of critical importance to this case. It is clear that Mr. Shaikh handed over only one key to the buyer of the Range Rover. The defendant asserted that he had only one key in his Proof of Loss statement and repeated this in his Statement under Oath to Mr. Griffiths. The latter forms the basis of the perjury count. Moreover, a second key is a significant part of the fraudulent scheme that is alleged. If the motor vehicle was shipped overseas, a key would go with it. If the defendant falsely reported the theft of his vehicle, being in possession of a key is helpful in portraying the loss as having occurred without his participation or negligence. Hence the need to obtain another key.
Is the Defendant's Statement to Police Voluntary?
[21] Defence counsel objects to the admissibility of her client's statement. She submits that the defendant was brought to the station under false pretences and not told until the end of the interview that he was a suspect. Counsel argues that the "soft caution" administered by the officer is not sufficient and that the defendant must fully understand his jeopardy. Defence counsel correctly points out that the defendant was not told he was a suspect. At this stage of the proceedings, it is not clear where the defendant was on the continuum from witness, to suspect, to accused. I note that the defendant was not charged until much later. In any event, within minutes of meeting each other, Det. MacFarlane told the defendant that "in theft cases [such as this] we ask about the debt of the claimants". I note that the defendant holds a responsible position at a major utility. He was sober, coherent, and articulate. He was speaking to a police officer, not an insurance adjuster. The defendant could not fail to appreciate that the reported loss of his motor vehicle was under scrutiny.
[22] The defendant was neither detained nor under arrest. The meeting became confrontational but there were no overt threats, inducements, or promises. The circumstances were not oppressive. The defendant did not appear intimidated. After being accused of falsely reporting the theft, he protested his innocence, expressed a desire to speak to counsel, terminated the meeting, and left. I have no doubt that the defendant's statement was freely given. In this regard, I have considered the actions of the officer and the statement itself. I find it to be voluntary within the meaning of R v Oickle 2000 SCC 38. The statement repeats other assertions made by the defendant about his purchase of the motor vehicle. What it adds is a possible motive to falsely claim indemnification that goes beyond mere greed and the strange fact that he never asked police if the vehicle he reported stolen had been found.
[23] In this case credibility is not an issue; that is, it is not suggested that the witnesses called by the Crown have been untruthful. Moreover, the reliability of Mr. Shaikh and Mr. Savja was not seriously contested. Similarly the documentary evidence is clear and unchallenged. Accordingly, there is no doubt that somebody purchased the Range Rover in question and, nine days later, ordered a new key for it. Both transactions were completed in the name of the defendant, with accompanying personal information. However, Mr. Shaikh could not identify the buyer and Mr. Savja did not deal with the person who ordered the key.
[24] I turn now to Mr. Seegobin's evidence. Within weeks of the purchase of the Range Rover and the order for a new key, the defendant brought the motor vehicle to him for servicing. The reliability of Mr. Seegobin was challenged with the result that he conceded the defendant might not have told him directly that he was shipping the Range Rover to Africa; he agreed he might have overheard the defendant talking about shipping a motor vehicle overseas. At the very least, I can be confident that while servicing the Land Rover, he overheard the defendant say he "goes back and forth" to Africa and that he would be shipping a motor vehicle there. The fact that he remembers this two years later shows that he found the conversation remarkable. I accept this as a mark of reliability. In all the circumstances it is reasonable to assume the defendant was talking about the Land Rover. There is some confirmation of this in the evidence of Mr. Shaikh. He testified that the buyer of the motor vehicle told him it would be sent to Ghana.
[25] Mr. Savja's testimony about the security procedures for cutting a new key as well as the related documents identified by him persuades me that it was indeed the defendant who ordered the key. In this regard, I also rely upon the fact that the personal information on the relevant invoice, including cellular phone number, matches that provided by the defendant when he filed a Statement of Loss with his insurance company. Equally significant is the chronology of events; the key was ordered one day after the ownership to the car was registered in the defendant's name and eleven days before the defendant brought the vehicle to his mechanic for servicing.
Is the Statement under Oath Admissible with Respect to All Charges?
[26] The defendant's examination under oath is the subject of the perjury count. The Crown claims it is also admissible to prove the other charges. The Defence argues that to use the statement for the latter purpose is contrary to the Charter of Rights and Freedoms.
[27] Section 13 of the Charter provides that, "A witness who testifies in any proceedings has the right not to have an incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury of for the giving of contradictory evidence". The scope of this section was recently considered by the Supreme Court of Canada in R v Nedelcu 2012 SCC 59. That case decided that a compelled statement under oath could be used for impeachment purposes in certain circumstances. It did not change the law as set out by the same court in R v Henry 2005 SCC 76 that the Charter only applies to compelled statements: Section 13 embodies a quid pro quo; when a witness who is compelled to give evidence is exposed to the risk of self incrimination, the state offers, in exchange, a protection against the subsequent use of that evidence against him.
[28] The examination under oath by the defendant in this case was not a compelled statement within the meaning of Henry. The fact that the insurance company might be suspicious of the defendant's claim if he declined to be examined under oath, does not alter the essential character of that statement; it was freely given. Accordingly, I accept the Crown's submission that the statement is not restricted to the perjury count and can be used to prove the other charges. The statement is largely confirmatory of other evidence.
[29] The chronology of events in this matter is as follows:
11 October 2011 – Mr. Shaikh sold a Land Rover (Range Rover), with one used key, to an unknown male for $14,500.00. He is told it will be sent to Ghana;
19 October 2011 – Ownership in Range Rover is registered in the defendant's name;
20 October 2011 – A new key is ordered for the Range Rover from a Toronto area Land Rover dealership;
21 October and 7 November – the defendant brings the Range Rover to his mechanic for servicing. The latter overhears the Defendant say he often goes to Africa and that he will send a motor vehicle there;
3 January 2012 – the Defendant contacts police to report the theft of the Range Rover;
11 January 2012 – the Defendant files a Statement of Loss with his insurance company in which he reports a different date (5 October) and price ($21,000.00) for the purchase of the Range Rover. He also asserts that he has only one key. This is turned over to the insurance company;
13 January 2012 – Mr. Smith, an investigator with Desjardins Insurance, contacts the police and reports that this is third stolen vehicle reported by the defendant and members of his family. He also advises that he received one new key for the vehicle.
2 February 2012 – Det. MacFarlane invites the Defendant for an interview and questions him at length about his income, expenses, and purchase of the Land Rover. It is clear his monthly income is insufficient to cover his monthly expenses and credit charges. The Defendant does not ask if the vehicle has been found.
31 January 2013 – The defendant is examined under oath by counsel on behalf of the insurance company. He states that he the seller of the Range Rover is "Mohamed" and that he paid him $21,000.00 for the vehicle ($11,000.00 by way of money order and $10,000.00 in cash). The defendant also deposed that he received one key from the seller of the vehicle and that he never acquired a second key.
8 April 2013 – The defendant is arrested
[30] The defendant's references to "Mohamed" and "Kijiji" in the examination under oath confirm the inference I draw from the other evidence that he purchased the Range Rover from Mr. Shaikh. His assertions that he paid $21,000.00 for the vehicle and possessed only one key, repeat false statements he made in the Proof of Loss Statement. The latter is a sworn document that acts as the application to be indemnified by the insurance company for the theft of the motor vehicle. I am convinced the Range Rover was not stolen. This explains why, during the course of an hour long interview with the investigating officer, the defendant never asked about the progress of the investigation or if the vehicle has been found. It is likely the Range Rover was shipped to Africa but this conclusion is not necessary for the disposition of this case; the Crown has proven the defendant falsely claimed his motor vehicle was stolen in his application for indemnity.
[31] The Defence submits that fraud requires dishonesty and deprivation and adds that there is no evidence to show how much the insurance company would lose because of this fraud. This argument proceeds as follows: Indemnification is based on the value of the vehicle, not the claim made by the insured person and/or the purchase price of the vehicle. In this case, there is no evidence of the market value of the Range Rover or that the defendant knew this. I do not accept this submission. It is clear the defendant attempted to defraud his insurance company and the amount of the ill-gotten gain, if any, is irrelevant.
[32] The Defence argues that there is no public mischief in this matter because the defendant did not cause the police to investigate any claim; it was the insurance company that referred the matter to Det. MacFarlane. I reject this submission. The defendant reported the loss of his vehicle to Cst. Wilson. Whether or not this officer conducted an investigation, that report was in aid of the insurance claim. The company's referral to police is inextricably linked to the defendant's actions and does not shield him from the consequences.
[33] I find the defendant guilty of public mischief, attempted fraud over $5,000.00, false pretence. The defendant is also charged with committing perjury by insisting, in the statement under oath, that he (i) only had one key to the Range Rover, (ii) turned it over to the insurance company, and (iii) never acquired another one.
Can a Business Record Prove Perjury and Must This Be Corroborated?
[34] Perjury is an inchoate crime that primarily rests in an attempt to mislead through false evidence and includes a failure of memory that is dishonest and deliberately asserted to prevent the court from arriving at a decision upon credible evidence: See R. v. Wolf, (1975), 17 C.C.C. (2d) 425 (S.C.C.). In a prosecution for perjury the Crown must show that (1) the evidence given by the defendant was false, (2) the defendant knew it to be so, and (3) this was done with intent to mislead the court: See R. v. Calder, (1960), 129 C.C.C. 202 (S.C.C.). Section 133 of the Criminal Code provides that, "No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused"
[35] Defence counsel also argues that the Land Rover Metro West business records cannot be used to prove perjury and they are not corroborated. R v Thind [1991] B.C.J. No. 768 (BCCA) is cited as authority. I agree with the Crown that Thind does not stand for proposition that business records cannot be used as corroboration; the comments at para 56 are offered by way of example that is not intended to speak to the use of business records in perjury prosecutions. I am also of the view that section 133 of the Code does not apply when business records are relied upon to prove perjury.
[36] The issue of corroboration was considered in R v Reyat 2012 BCCA 311 and the court made the following observations (paragraphs 48-51):
The purpose of s. 133, as explained by the Alberta Court of Appeal in R. v. Bouchard (1982), 66 C.C.C. (2d) 338 (Man. C.A.) at p. 342, is "to protect an accused from the false testimony of a single witness swearing against him and saying that the accused lied. It has been said that the court should not be left with one oath (that of the witness) against another oath (that of the accused)." The Yukon Court of Appeal has reiterated the same principle more recently in R. v. Eriksen, 2006 YKCA 13, 213 C.C.C. (3d) 374. Saunders J.A. stated, at para. 21, that the purpose of s. 133 was to avoid "the danger that the accused will be convicted by a contest, oath against oath, between himself and herself, and another witness."
This is not the situation in the case at bar. As the respondent Crown rightly points out, the appellant was not convicted "on the evidence of only one witness". The case against Mr. Reyat was circumstantial, based primarily on his own testimony at the Air India Trial. The Crown did not call any witnesses to testify to the appellant's untruthfulness. The danger that s. 133 was designed to address, as described in Bouchard and Erickson, did not arise in the present case.
Neveu c. R (2004), 184 C.C.C. (3d) 18 (Que. C.A.) confirms, at para. 19, that corroboration is not necessary in situations where the case against the accused is based entirely on circumstantial evidence.
I do not see any force in the appellant's argument concerning the statutory requirement for corroboration.
[37] Before Reyat was decided, the Ontario Court of Appeal declined the opportunity to rule on the matter. In R v Deutsch 2008 ONCA 727, one of the issues raised was whether perjury could be proven by business records, without further corporation. The answer was "left to a future case" as appeal was disposed of on other grounds. However, since then, the Ontario Superior Court has expressed views similar to what the British Columbia Court of Appeal would later hold in Reyat.
[38] In R v Wilson 2011 ONSC 3385 (paragraphs 24, 27 & 28) Code J., in examining the rationale underlying the statutory rule in s.133, cited Bouchard: "It used to be said that 'where there is only oath against oath, it stands in suspense on which side the truth lies.' That is simply not sufficient proof in a serious charge of perjury". He compared "oath against oath" cases from those where the defendant has given contradictory versions of the same facts, and the Crown seeks to prove perjury by way of circumstantial inference. He noted that in such a case, s.133 has no application." In coming to this conclusion he quoted from Neveu:
If, in order to prove perjury, the Crown only bases its case on circumstantial evidence, the requirement of corroboration 'of only one witness' in s.133 Cr.C., is no longer justifiable. The very essence of circumstantial evidence, which requires that everything be considered as a whole, entails that a part of this evidence, on its own, would not be enough to permit a finding of guilt on a charge of perjury. As a result, s.133 Cr.C. is inapplicable in the case of circumstantial evidence because it requires corroboration only when an accused can be found guilty of perjury on the evidence of only one witness.
[39] Defence counsel argues that this is not a circumstantial case wherein the defendant provided two contradictory statements, thus vitiating the requirement of more than one witness and that a business record does not exclude the corroboration rule. I acknowledge that in Deutsch, the Ontario Court of Appeal left this issue unresolved and that Reyat and Wilson do not deal specifically with business records. However, applying the reasoning in those decisions, I hold that the Land Rover Metro West invoice can be used to prove the falsity of the defendant's statement under oath without corroboration. This is not a case of "oath against oath"; instead, it is one in which the defendant's oath is contradicted by a document made in the ordinary course of business. It was produced by an established system in a business, and is customarily accepted and regarded as reliable in the operation of that business. I have already explained why I find that the defendant is the person to whom that invoice was issued.
[40] Defence counsel submits that even if the businesses records can be used, without further corroboration, to prove perjury, there is nothing to suggest that the defendant's false statement about the key was intended to mislead. I disagree. As I have explained, the purchase of the second key was important in facilitating the fraud. Similarly, lying about it was a significant act in concealing the scheme. I have no doubt that the defendant knowingly made a false statement under oath with intent to mislead. He is guilty of perjury.
Conclusion
[41] The Crown does not seek a conviction on count 3 as it is part of count 2. Accordingly, I stay that count and record findings of guilt with respect to public mischief, fraud, and perjury.
[42] Ms Claxton and Mr. Boodoosingh were of considerable assistance to me; I appreciate their fine advocacy throughout this trial.
Released: April 25, 2014
Signed: "Justice De Filippis"