Court Information

Ontario Court of Justice

Date: 2014-06-04

Court File No.: Regional Municipality of Durham 998 13 RA25258

Between:

Her Majesty the Queen

— AND —

Victor Akinyemi

Before: Justice J. De Filippis

Heard: 6 May 2014

Reasons for Sentence released on: 4 June 2014

Counsel:

• Mr. T. Boodoosingh — counsel for the Crown
• Ms C. Claxton — counsel for the Defendant

Reasons for Sentence

De Filippis J.:

[1] After a five day trial, I found the defendant guilty of public mischief, attempted fraud over $5,000.00, and perjury. In essence, the defendant 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 fraud was not successful and the defendant was arrested for these offences. My reasons are reported at R v Akinyemi, 2014 ONCJ 2013.

[2] The chronology of events in this matter is as follows:

In October 2011, Mr. Shaikh 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. This is the defendant's name and address. Mr. Shaikh gave one used key for the Range Rover to the purchaser and was told the vehicle would be exported to Ghana.

On 19 October 2011, ownership in Range Rover was registered in the defendant's name.

On 20 October 2011, a new key was ordered for the above noted Range Rover by a man who produced identification in the name of Victor Akinyemi, resident at 46 Thackery Drive, Ajax. The cost of cutting the new key was $348.24.

In late October and early November 2011, Mr. Seegobin, an automobile mechanic, serviced the Range Rover in question at the request of the defendant. The repairs cost $1,111.69 and he paid in cash. While servicing the vehicle, Mr. Seegobin overheard the defendant say he goes back and forth to Africa and would be shipping a motor vehicle there.

On 3 January 2012, the defendant contacted the police to report the theft of the Range Rover. He stated he had visited a friend and parked the vehicle on the street while he stayed overnight. In the morning he awoke to find the car gone.

On 11 January 2012, the defendant filed a Statement of Loss with his insurance company in which he reported a different date (5 October) and price ($21,000.00) for the purchase of the Range Rover. He also asserted that he has only one key.

On 2 February 2012, Det. MacFarlane invited the defendant for an interview and questioned 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 did not ask if the vehicle had been found.

On 31 January 2013, the defendant was examined at the offices 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.

[3] At the examination under oath the defendant stated he had purchased the Range Rover as a result of an advertisement on the Kijiji website from a man whose first name is "Mohamed". This is Mr. Shaikh's first name. The defendant also said the seller had given him only one key which was turned over to insurance company when he claimed indemnity for the theft of the motor vehicle. He was asked and answered the following questions:

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.

Q: 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.

[4] The significance of the defendant's testimony about the key is set out in the following excerpts from my reasons for judgement:

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.

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.

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.

I find the defendant guilty of public mischief, attempted fraud over $5,000.00, false pretence [the latter was stayed by the Crown]. 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.

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.

[5] The defendant is 37 years old and married with children. He is an engineer by profession. He does not have a prior criminal record. I am advised the defendant lost his job because of these charges and will have difficulty pursuing his career with a criminal record. The defendant has had to liquidate his investments to support his family. He has significant community support; I received letters from family and friends; all are shocked by these events and attest to good character. His pastor testified that the defendant is a valued member of the All Nations Full Gospel Church and volunteers at several church programs. The defendant's wife informed me that the family is in financial distress because her husband has not found other employment. The defendant offered a tearful apology to the court and asked for leniency.

[6] The position of the parties reflects their appreciation of the offences and personal circumstances of the defendant: The Crown submits that a sentence of 90 days in jail, followed by probation is appropriate. The Defence argues for a discharge or, in the alternative, a conditional sentence of house arrest. A discharge is out of the question in the circumstances of this case; such a disposition is in the defendant's best interest but contrary to the public interest, especially, as will be explained below, with respect to the perjury count.

[7] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The first two criteria are not obstacles in this case; the only issue is the third and fourth pre-requisite.

[8] There is nothing to suggest the defendant would endanger the safety of the community if her sentence were served under house arrest. Moreover, it is my practice not to impose conditional sentences without the electronic supervision program. Thus, I have greater confidence that the provisions of house arrest will be observed and this mitigates the risk of harm to the community. The real issue is whether a conditional sentence is in accord with the principles of sentencing; as noted, the most important ones in this case are denunciation and deterrence.

[9] The Supreme Court of Canada has observed that a conditional sentence can meet the demands of denunciation and deterrence in the right circumstances (see R v Proulx 2000 SCC 5). A conditional sentence for the attempt fraud and public mischief would properly balance the defendant's personal circumstances with the planned and deliberate steps taken, over time, to facilitate the offences. However, such a sentence is not appropriate with respect to the perjury. In coming to this conclusion, I take into account the nature of this offence and the fact that it was committed one year after the defendant was confronted by the police and while he was represented by counsel. This was a considered act, not a spontaneous one.

[10] By providing a maximum penalty of 14 years for perjury, Parliament expressed its view of the gravity of the offence. The courts have treated the matter seriously because it strikes at the heart of the judicial system; R v C.D. [2000] O.J. No. 1668 (Ont. C.A.). It has been said that perjury is an offence that is easy to commit, yet difficult to prove and that once proven, the offender must expect severe punishment; R v Foster [1982] S.J. No. 1124 (Sask. C.A.).

[11] In R v Kusnezoff [1991] B.C.J. No. 412, the British Columbia Court of Appeal identified three kinds of perjury:

The most serious category is where the perjured evidence is being given to lead to the conviction of an innocent person.

The second most serious category is where, as in this case, the perjured evidence is given in the hope of procuring the acquittal of a guilty person.

The third and final category, in a descending order of seriousness, is where a person gives perjured evidence to protect himself or herself.

[12] The defendant's perjury places him in the third category. A similar case is R v Zeek 2004 BCCA 42 in which the offender lied under oath to perpetuate an insurance fraud. In upholding a sentence of 12 months in jail, the British Columbia Court of Appeal stated that a conditional sentence did not address the principles of denunciation and deterrence.

[13] In this case, the principles of denunciation and deterrence require a jail sentence. Having regard to the defendant's personal circumstances, including the impact on his career and financial hardship, I accept the Crown's submission of a 90 day jail sentence for the perjury. In light of this, I suspend the passing of sentence for the remaining counts and place the defendant on probation for one year on terms that keep the peace and be of good behaviour and have no contact with Mr. Shaikh, Mr. Seegobin, Mr. Savja, Mr. Smith and Mr. Griffiths. I also order that the defendant provide a sample of his DNA.

Released: June 4, 2014