Ontario Court of Justice
Date: 2015-01-15
Court File No.: Peterborough 13-0524
Between:
Her Majesty the Queen
— AND —
Stephanie Iroguehi
Before: Justice S.W. Konyer
Heard on: January 14, 2015
Reasons for Judgment released on: January 15, 2015
Counsel
Ms. K. Eberhard — counsel for the Crown
Mr. D. McFadden — counsel for the defendant Stephanie Iroguehi
Konyer J.:
Charges and Issues
[1] There is no dispute that Shirley Connolly was defrauded by persons unknown to her in October 2012. There is also no dispute that $10,000 was fraudulently transferred from Ms. Connolly's bank account to that of an account held by the accused, Stephanie Iroguehi, or that a further $15,000 was fraudulently transferred to accounts held by other individuals.
[2] Ms. Iroguehi is charged with two offences in relation to these fraudulent transactions. First, that she defrauded Ms. Connolly of the $10,000 that was transferred to her account, contrary to section 380(1)(a) of the Criminal Code. The issue on this charge is whether the accused is liable as a party to the fraud perpetrated upon Ms. Connolly.
[3] She is also charged with possessing currency knowing that it was obtained by the commission of an offence, as a result of her withdrawal of the fraudulently obtained funds and her possession of approximately $8,000 of that money until it was handed off to an unknown African male. The issue on this count is whether the accused was wilfully blind to the fact that the money had been obtained illegally.
Summary of the Facts
[4] The facts can be summarized as follows. Ms. Connolly, a resident of Havelock, Ontario, was contacted by telephone in October 2012 by an unknown male, who informed her that she had won 2.6 million dollars in the Publisher's Clearinghouse Sweepstakes. In order to collect the prize money, however, the male informed Ms. Connolly that she would need to participate in a scheme whereby $25,000 would be transferred into her bank account in a number of smaller amounts and she would in turn withdraw the funds in cash and deposit the funds in other accounts. Despite some well-founded misgivings, Ms. Connolly agreed and provided the unknown caller with banking information that would allow access to her accounts. Soon after, she was informed through a series of calls that the transfers to her accounts had been made in amounts of $5,000 or $10,000, and she followed instructions for dispersing these funds to other accounts whose information was provided to her. After the fact, Ms. Connolly discovered that there was no 2.6 million dollar prize, and that the $25,000 which she had removed from her account had been transferred there as a result of transfers from her VISA and line of credit accounts. In other words, she was out $25,000.
[5] On October 26, 2012, the amount of $10,000 was transferred by Ms. Connolly from her personal account to an account held by the accused, which has been confirmed by banking records. On that same date, $3,000 was withdrawn by the accused from her account in cash, a further $500 was transferred to another account that she held, and a further $1,200 was withdrawn from the account by way of an ATM withdrawal. These transactions are also confirmed through bank records and surveillance confirming the identity of the accused as the person making the $3,000 cash withdrawal which was done in person. Thus, of the $10,000 transferred to Ms. Iroguehi's account on October 26, 2012, some $4,700 was removed on the same date.
[6] Ms. Iroguehi testified in her own defence. Her family comes from Nigeria and though she was born in Canada she spent much of her formative years in Nigeria. In October of 2012, she was asked by a family friend named Edison Obaseki for her bank account number in order to allow a friend of his to transfer $10,000 to her account. She had concerns about whether the $10,000 was the product of fraudulent cheques from schemes she had heard about through friends. Edison apparently assured her that the money was legitimate and stated that he could not use his own account as it was "not working". She agreed and provided Edison with her account information.
[7] On October 26, he called her at work and told her that the transfer had been done that day and asked her to withdraw the entire amount in cash to be given to an unnamed friend that would pick up the money. It is worth noting that Ms. Iroguehi lived in Toronto at this time, while Edison lived in Vancouver.
[8] As a result of the call from Edison, Ms. Iroguehi attended her bank and tried to withdraw the entire amount in cash. She was informed by the teller that the maximum daily cash limit for withdrawals was $3,000 which was given to her, but that she could take more money out by using the ATM. While at the teller, Ms. Iroguehi also transferred $500 to another of her own bank accounts, in apparent repayment for an earlier loan to Edison. She then went to an ATM on the same date a Friday, where she withdrew another $1,200 from the account, which was the maximum she could take out.
[9] Over the course of the next two days, she removed as much money as possible from the account, totaling approximately $8,000. She remained in telephone contact with Edison, who was monitoring her progress in converting the transferred funds to cash. On Sunday, October 28, 2012, Edison informed her that his friend, whose identity was unknown to Ms. Iroguehi, would be attending her address to collect the money. He called her on the same date, and she met him in his car in front of her residence where she handed over the $8,000.
[10] The following day, she discovered that her ATM card was no longer working. She subsequently learned that her bank was conducting an investigation into the transferred $10,000. Ms. Iroguehi left for Nigeria on a pre-planned month-long trip in mid-December 2012. When she returned to the Toronto area, she learned that the police had obtained an arrest warrant for her, and she turned herself in to the nearest police station.
[11] Perhaps unsurprisingly, the family friend Edison disappeared without a trace once he learned of the bank's investigation into the $10,000 transferred to Ms. Iroguehi's account, and Ms. Iroguehi alone stands charged in relation to the funds fraudulently stolen from Ms. Connolly.
Applicable Legal Principles
[12] On count 1, the charge under section 380, the issue is whether Ms. Iroguehi is liable under section 21(1)(b) of the Criminal Code as an aider of the unknown principal or principals who were responsible for transferring the $10,000 from Ms. Connolly's account to her own.
[13] Section 21(1)(b) provides that "[e]very one is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it".
[14] A person is guilty as an aider if they actually assist the principal, and if they do so with the requisite mens rea. The leading authority on the mens rea requirement for aiding or abetting the commission of an offence is the SCC decision in R. v. Briscoe (2010), 2010 SCC 13, 253 CCC (3d) 140. The court held that the mens rea for aiding had two components: intent and knowledge. The Crown must therefore prove that the accused intended to assist the principal in the commission of the offence, and that the accused knew that the principal intended to commit the crime, though the aider need not know precisely how it will be committed. The knowledge component of the mens rea requirement can be satisfied through proof of wilful blindness, or deliberate ignorance.
[15] On count 2, the charge of possession of stolen property, the issue is whether Ms. Iroguehi knew that the money in question was obtained as a result of the commission of an offence. Again, the knowledge component may be satisfied through wilful blindness. Since it is not disputed that the money was obtained by the commission of an offence, and since Ms. Iroguehi admits to having control over this money for a period of time, the only issue is whether she was wilfully blind to its illegal origins. Wilful blindness, according to the SCC in R. v. Sansregret (1985), 45 CR (3d) 193, "arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant." [para. 22] Put another way, "a finding of wilful blindness involves an affirmative answer to the question: did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?": see R. v. Briscoe, supra, at para. 21.
Analysis
[16] I am satisfied beyond reasonable doubt that Ms. Iroguehi was in a state of deliberate ignorance with respect to the illegal source of the funds that were transferred into her account. I make the finding based on a consideration of the following facts:
The unusual nature of the request from Edison to Ms. Iroguehi that she accept a $10,000 transfer of funds from an unknown source in order for her to in effect launder the money
The fact that she questioned Edison about whether the money came from cheque scams, which suggests that Ms. Iroguehi recognized that she was being asked to deal with funds that potentially derived from an illegal source
Her failure to ask virtually any questions of Edison, including a sensible explanation of his inability to use his own account, the name of the friend, the reason why her account had been selected and, most importantly, where the money was coming from. This compels me to the conclusion that Ms. Iroguehi simply did not want to know where the money was from, despite having ample reason to suspect that its source was an illegal one.
The fact that she handed the money over to a complete stranger in the manner she described suggests that she did not want to know the identity of the money's source, bolstering my conclusion that she had reason to suspect its origin was illegal.
[17] This conclusion, that Ms. Iroguehi was wilfully blind to the fact that the money transferred to her account was the product of fraud leads me to conclude that Ms. Iroguehi is guilty on count 2, since the other elements of this offence are conceded.
[18] However, I am not satisfied beyond reasonable doubt that Ms. Iroguehi was a party to the fraud committed upon Ms. Connolly. Although her actions in providing her account information to Edison assisted Edison (and perhaps others) in fraudulently transferring money to her account from Ms. Connolly's account, there is no evidence that this was her intent. Presumably, in her state of wilful blindness, she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources.
[19] The Crown argues that the situation here is analogous to the situation in R. v. Tomlin [2012] O.J. No. 4677 (S.C.J.), aff'd [2014] O.J. No. 2188 (C.A.). Tomlin was convicted of importing cocaine concealed in two suitcases after he was searched upon his return to Canada. The court found there was no evidence of actual knowledge on Tomlin's part of the presence of the cocaine, but inferred that he was aware of this fact based on a number of factors. Tomlin was given the package containing the cocaine which he stowed in his suitcase. When the suitcase was opened by customs officers and he was questioned about the contents of the package, he claimed that it contained fish. His evidence to the court was that he had no knowledge of the contents of the package. The court found that he deliberately lied to the customs officer about the contents of the package because he knew it contained cocaine and not fish.
[20] The Crown argues that Ms. Iroguehi lied about her knowledge of the source of the money that was transferred to her account, and that I should therefore infer that she did so because she knew that the money was derived from the commission of a fraud. Despite sharing many of the Crown's concerns about her credibility as a witness, however, I am not prepared to find that she lied about her knowledge of the source of the money. It may well be that she knew the money was derived from the commission of fraud, or it may simply be that she chose to remain in a state of deliberate ignorance as to the money's origin.
[21] Ms. Iroguehi's deliberate ignorance to the source of the money is not, in my view, sufficient to prove that she had subjective knowledge of the fraudulent scheme through which that money was obtained. She will therefore be found not guilty on count 1.
Released: January 15, 2015
Signed: Justice S.W. Konyer