R. v. Kalonji et al.

Date: May 17, 2019 Location: Toronto Court: Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

Herve Kalonji, Tyrone Simmons-McKenzie, Angela Galbraith, Keyah Robinson, Bambous Munyenga and Kyle Henry

Before: Justice Mara Greene

Reasons for Judgement released: May 17, 2019

Counsel

For the Crown: G. Hession-David

For Mr. Kalonji: R. Chartier

For Mr. Simmons-McKenzie: R. Fedorowicz

For Ms. Galbraith: C. Keystone

For Ms. Robinson: R. Sekhon

For Mr. Henry: C. Brunet

For Ms. Munyenga: Z. Champsi

Reasons for Judgment

Introduction

[1] Mr. Kalonji, Mr. Simmons-McKenzie, Mr. Henry, Ms. Munyenga, Ms. Robinson and Ms. Galbraith are all charged with a number of offences including criminal organization offences, fraud and conspiracy to commit fraud. The essence of the allegations are that Mr. Kalonji and two other men not presently charged (Mr. Boursiquot and "Ace") were running a criminal organization whose main activity was committing account take over frauds. It is alleged that Mr. Kalonji worked with the other named defendants to carry out these frauds over a period of six months. It also alleged that Mr. Kalonji and Mr. Henry conspired to traffic in firearms and Mr. Kalonji and Mr. Simmons-McKenzie are charged with trafficking in identification for a criminal organization.

[2] At trial, the evidence presented included i) six months of intercepted telephone calls and BBMs (black berry messages); ii) bank records; iii) affidavits from victims of fraud; iv) expert evidence on account take over frauds; and v) the results of the execution of search warrants.

[3] After a trial that took a year to complete, Mr. Kalonji conceded that the substantive offence of fraud has been made out against him, but argued that the other offences were not proven beyond a reasonable doubt. All other parties argued that none of the charges against them have been proven beyond a reasonable doubt. The essence of the defence arguments were as follows:

a) That while the nature of the intercepted communications coupled with the bank records may be suspicious, they do not rise to the level of proof beyond a reasonable doubt;

b) That even if the evidence does establish that the parties were engaging in account take over frauds, the Crown has failed to prove a global conspiracy by all the parties. Instead, the evidence establishes a series of smaller conspiracies not particularized by the Crown;

c) That the Crown has failed to prove the existence of a criminal organization;

d) That the Crown has failed to prove that Mr. Simmons-McKenzie, Ms. Munyenga and Mr. Henry are the persons captured on the intercepted communications.

Summary of the Evidence

[4] It is difficult, if not impossible to summarize in a concise fashion all the evidence presented at trial. Instead, I will review the key aspects of the evidence with reference to specific examples of evidence that assisted me in my findings of fact.

[5] The core of the Crown's case lies with the intercepted communications. Having said that, all the calls and BBMs filed with the court are in guarded language and often involved slang words (or as the Crown suggests "coded language"). As a result, drawing conclusions from the intercepted communications themselves can be difficult. The expert evidence and the bank records provide some real assistance in interpreting the slang and guarded language used by the defendants in their communications. When the intercepted communications are viewed together and in conjunction with the expert evidence about how account take over frauds work and the bank records filed with the court, the meaning to be attached to the intercepted communications solidified and allowed me to draw some real conclusions about what was taking place.

Account Take Over Frauds – The Expert Evidence

[6] The Crown called expert opinion evidence to explain to the court how account take over frauds work. The essence of the account take over fraud is that perpetrators open accounts (called complicit accounts) that are then linked to victim accounts (the information for this often comes from an inside person) by creating joint accounts between the victim account and the complicit account. Funds are then siphoned out by transferring the funds from the victim account to the joint or complicit account through online transfers. Another person then attends at the bank and withdraws the funds. Sometimes the complicit account is in the name of a member of the fraud. Other times, the complicit account is in some other name. In addition to transferring money from victim's accounts to the complicit accounts, these frauds may also include fraudulently setting up a line of credit and withdrawing funds from this line of credit.

[7] According to the expert witness, given the complex nature of this fraud, it often involves multiple players which include:

a) the insiders who obtain the account details so the complicit accounts can be set up and accessed;

b) The hackers who break into the bank computer system to load accounts or transfer money;

c) The managers who run the fraud and liaise between the insiders and hackers and those withdrawing funds from the accounts;

d) The runners/strikers who either access money online or attend at the banks to withdraw money;

e) The handlers who manage the strikers; and,

f) The complicit account holders.

[8] With this structure in mind, it is alleged that Mr. Kalonji, Mr. Boursiquot and a man only referred to as "Ace" were the managers of an account take over fraud enterprise. Some dealt with the insiders and others dealt with the hackers. Regardless of which partner took on which aspect, they all worked to pass on account numbers so that accounts could be opened or accessed, loaded and then emptied by albeit different people. It is alleged that both Mr. Simmons-McKenzie (a.k.a. Jimmy) and Mr. Henry handled the runners (the people who withdrew the money) at the direction of Mr. Kalonji. It is further alleged that Ms. Munyenga helped Mr. Kalonji make connections so that he could expand his enterprise. It is alleged that Ms. Robinson was a complicit account holder and that Ms. Galbraith helped on the ground level to access accounts and withdraw money while knowing about the broader fraudulent agreement. The defence argued that the above interpretation of the evidence is largely speculative and that there are many other reasonable explanations for the conversations captured during this investigation.

The Intercepted Communications and Bank Records

[9] To understand the nature of the case, it is helpful to proceed partially in chronological order and partially through specific transactions.

(i) Understanding the Fraud

[10] The intercepts begin in early February, 2016 and ran until the end of May 2016. The arrests were all made in the first week of June.

[11] The first calls filed with the court were from February 5, 2016. On this date there were a series of communications between Mr. Boursiquot and Mr. Kalonji that are quite vague. The impression I had when reviewing these first calls alone is that the participants are speaking in guarded language. The language is so guarded that in my view, it is difficult to make out what they are talking about. There were some common phrases throughout these calls that raise the specter of them being fraud related. These phrases include: "increasing limits", "making money", "taking thousands", how much "cut" they will make, how much certain people have taken (specifically persons named Mensha and Jimmy) and about an inside person. Other comments of note in these calls include Mr. Kalonji stating to Mr. Boursiquot how "his boy" was "blown". Moreover, Mr. Kalonji referred to Mr. Boursiquot as his "partner".

[12] On February 7, there are a series of calls between Mr. Kalonji and Ms. Galbraith. In the first call of note Mr. Kalonji stated that the "kid's supposed to ahm…hand me the money". Right after making this statement, Mr. Kalonji asked Ms. Galbraith to google banks in downtown Winnipeg to find out what time RBC banks open. She clearly does so because later she sent BBMs to Mr. Kalonji that they were all closed. Mr. Kalonji then told her to see if any TD banks were open. Ms. Galbraith sent a text back stating that one was open and she provided the address. Mr. Kalonji, in the phone call that follows then, in my view, instructed Ms. Galbraith to do something with an account. He stated "I send you a phone number to send the account and charge it that name". Ms. Galbraith, in the next conversation confirmed that she is to send "him" the "stuff" that Mr. Kalonji sent to her. Mr. Kalonji replied yes and that this is what is happening because her "stuff" is closed. Ms. Galbraith, according to bank records, had an account with the RBC. One possible inference from this information (without considering the additional evidence at trial) is that Ms. Galbraith could not use her own account because the RBCs are closed, so Mr. Kalonji supplied her with a different account.

[13] Then there were a series of communications on February 9, 2016. Some are between Mr. Boursiquot and Ace and hence are not admissible against the defendants unless the co-conspirators hearsay exception applies. In these calls, however, Mr. Boursiquot and "Ace" had a conversation about an inside person and how much money Mr. Boursiquot paid his insiders. Mr. Boursiquot explained to Ace that he gives the insider person account numbers and she then joined up accounts. Mr. Boursiquot indicated that at the time he had something going on in Ottawa that gave him more money because his inside person was able to set up lines of credit. Ace asked about whether or not they should be concerned about the inside person getting arrested. During this call, Mr. Boursiquot called Ace his partner.

[14] On this same date, Mr. Boursiquot and Mr. Kalonji had a conversation where Mr. Kalonji stated that his boy has "great hackers" and that they "cracked" the RBC thing. They continued to call each other partner.

[15] On February 10, 2016 Mr. Kalonji also spoke to Ms. Galbraith about someone who stole his funds. He mentioned that he took her stuff and told others to put money in it. In a related conversation, Mr. Boursiquot told an unknown male that "five" just stole $30,000.00 from D.C. (D.C. is Mr. Kalonji's nickname as is evidenced from a video filed with the court from 2014 where Mr. Kalonji is referred to as D.C. in the video and from the fact that in some of the calls, in particular some with Mr. Henry, he is called D.C.).

[16] On February 11, Mr. Kalonji talked to "Ace" and stated that he does not trust "Benzy". In other material filed with the court, it appears that Benzy is the nickname for Mr. Boursiquot. Then on February 13, 2016, Ms. Galbraith sent a BBM to Mr. Kalonji stating "If I go to the bank with cash under 10 000 they can't say anything right". Mr. Kalonji responded that the maximum she should deposit is $9500.00.

[17] The telephone communications from later in February shed additional light on the meaning to be attached to the guarded and vague conversations mentioned above. On February 19, 2016, Mr. Kalonji spoke to a person named G.H. This person asked Mr. Kalonji how much he should put in and they referenced that it is just "Rs" now and not "TDs". Mr. Kalonji also has some conversations with a person named Mensha in relation to accessing accounts.

[18] During this same time frame, Mr. Kalonji continued to speak to Mr. Boursiquot about completing banking transactions including conversations that involved passwords and access to accounts. During these calls, there was also a discussion about the risk of getting arrested. Given the concerns about being arrested, the only reasonable inference is that they are not talking about lawful bank transactions. Having said that, these calls, while consistent with the Crown's interpretation of acts in furtherance of an account take over fraud scheme, are still sufficiently vague as to leave me wondering exactly what they are doing. Whatever transactions were taking place, some were completed because in one call GH advised Mr. Kalonji that it was done. I agree that the calls all have a consistent theme – that is, bank account transactions, be it loading accounts, passing account numbers and references to making money. When looked at alone, they are still sufficiently ambiguous for me to be in doubt about what exactly was taking place. The pieces, at least for me, all fell into place after reviewing a particular conversation from February 22, 2016 between Mr. Kalonji and a third person. In this call, Mr. Kalonji talked more clearly about his account take over fraud system, he expressed that these account take overs can be hassles and that while he used to have strikers he does not any more. He further commented on strikers wanting a percentage. This is completely consistent with the Crown theory about the nature of the conversations.

[19] I will briefly pause in my review of the evidence to identify factual findings that I am able to make at this point. When all the calls from February 5 until February 22, 2016 are viewed together, I am satisfied beyond a reasonable doubt that the calls from February 5 until February 22 were in furtherance of Mr. Kalonji's account take over frauds. There is the passing back and forth of information about accounts and passwords that clearly do not belong to the parties. Mr. Kalonji specifically speaks about his hackers getting into the bank system. Moreover, there is discussion about making money through accessing accounts. It is difficult to imagine legally making money merely by accessing a bank account. There are also the discussions about being arrested, further establishing that the activities are unlawful. Moreover, Mr. Kalonji discussed the use of strikers. When all these conversations are looked at together, there is no other inference other than the one proposed by the Crown, that Mr. Kalonji is fraudulently transferring money from victim's accounts to other accounts that his people have set up.

(ii) Mr. Henry and Mr. Kalonji – February 20 – March 26

[20] It is through this lens that the remainder of the calls must be assessed. On February 20, 2016, Mr. Henry and Mr. Kalonji had a conversation where Mr. Henry stated that he was unable to pick up "three cards" because of issues with his phone. In another call later that same day, Mr. Henry advised Mr. Kalonji that he was going to pick up the three cards and will "Uber" them over to Mr. Kalonji. Mr. Kalonji and Mr. Henry then had a brief conversation about Ace, where it appears that Mr. Henry is quite concerned about Ace. A short time later, Mr. Henry sent three BBMs to Mr. Kalonji with what appears to be three different account numbers and a password. Given the content of these BBMs, the only reasonable inference is that when Mr. Henry and Mr. Kalonji spoke of three cards, they were talking about these three account numbers and bank cards. Moreover, in my view, the only reasonable inference to be drawn is that these accounts were fraudulently obtained. Neither Mr. Henry nor Mr. Kalonji are in banking. In fact, in one call Mr. Henry is looking for employment at a Goodlife gym. There is no lawful reason for them to be passing back and forth account information in relation to three different accounts. Moreover, through bank records filed with the court, it is clear that two of these accounts had just been opened earlier that month and they were not in the name of either of the defendants. This is consistent with an inside person helping out with the accounts. According to the bank records, money had been transferred into these accounts on February 25, 2016. The money that was transferred into the accounts came from victim clients that had not consented to the transfer of this money. According to the bank representative, there was no identifiable relationship between the victim's account and the new account where the money was transferred on February 25, 2016.

[21] In my view, when one looks at all the texts and phone conversations along with the above bank records, only one inference is available which is that someone set up three accounts and it was Mr. Henry's job to pick up the cards, pass the account information to Mr. Kalonji, who could then manipulate the accounts to be used in the account take over frauds. Mr. Henry's role with these cards continued over the next month. This is evident from a call on February 21st when Mr. Kalonji asked Mr. Henry to log into the accounts and from a call on February 22, 2016 when Mr. Kalonji and Mr. Henry again talked about the three accounts. Mr. Kalonji instructed Mr. Henry to get his people ready. On this same date Mr. Henry advised Mr. Kalonji that no transactions had occurred yet. This is consistent with what is seen on the bank records, as the accounts were not loaded until February 25, 2016.

[22] On March 5, 2016, Mr. Henry and Mr. Kalonji have a further discussion about the bank cards. There is reference to one card being "fucked up" but that the other two were still good. There is then some further discussion about what "the guy" told Mr. Henry to do about putting money on the card.

[23] The next day, Mr. Henry told Mr. Kalonji that he still has the RBC and is doing transactions on them. Mr. Kalonji advised him that they were going to put money on it tomorrow. All these discussions, while guarded, when viewed together support ongoing steps by Mr. Kalonji and Mr. Henry to access these fraudulently-obtained and loaded accounts.

[24] The last communication of note between Mr. Henry and Mr. Kalonji was on March 26, 2016 when Mr. Henry told Mr. Kalonji that he was getting a Porsche and that this car was linked to the cards. Mr. Kalonji then told Mr. Henry not to park his "shit" at Benzy's because Benzy is hot and just recently got arrested. In my view this last call confirms that when they were talking about cards, transactions and putting money on the cards, that they were talking about fraudulent withdrawals from accounts that had been unlawfully set up and loaded.

(iii) The Ottawa Fraud – March 6-9

[25] Moving back to early March, there are a series of calls between March 6 and March 10 between Mr. Kalonji, Mr. Boursiquot, Ms. Munyenga, Ms. Munyenga's brother, and Mensha. These calls on their face suggest some kind of fraudulent transaction is being set up, but the details of it are unclear from the calls themselves and there are no bank records to assist in providing more context. In some respects, it is easy to infer that Mr. Kalonji is engaging in the exact same kind of frauds as seen above, but given the lack of detail in the communications, while I am satisfied beyond a reasonable doubt that they planned and executed a fraud, the exact nature of the fraud is unclear to me. I will explain by reviewing the communications.

[26] This group of transactions starts on March 6 when Mr. Kalonji and Ms. Munyenga had discussion about her setting Mr. Kalonji up with her brother. When Mr. Kalonji and Ms. Munyenga's brother do speak, they start to talk about "Royal accounts" and "CIBC". This is the first sign that they are talking about banking transactions.

[27] Once the connection was made, Ms. Munyenga and Mr. Kalonji then have a discussion about receiving their fair share of the cut and percentages. This is some evidence that when talking about banks, they were not just talking about opening legitimate bank accounts, but that they were somehow going to make money from these banks.

[28] On March 7, 2016, Mr. Kalonji spoke to Mr. Boursiquot about whether it was worth it to go to Ottawa for this deal. Given the nature of the business that Mr. Kalonji is in with Mr. Boursiquot, this conversation is further evidence that Mr. Kalonji's activities with banks in Ottawa are fraud related. Mr. Kalonji then spoke to Mensha about travelling with him to Ottawa. It is known from previous communications that Mensha has attended at banks for Mr. Kalonji to make withdrawals from the accounts in furtherance of the frauds.

[29] Mr. Kalonji then had further discussions with Mr. Boursiquot about Ottawa, during which they also talked about work in Niagara. Since they do not have any lawful jobs that they work together, and given the nature of their partnership, the only reasonable inference is that they are talking about their frauds.

[30] On March 8, Mr. Kalonji told Ms. Munyenga that they made money. In my view, this call confirms that the fraud was completed and was successful.

[31] The final conversation that solidifies my view that all the above Ottawa-related calls are about some kind of fraudulent act that Mr. Kalonji committed with respect to banks in Ottawa with Mensha and Ms. Munyenga's brother took place on March 9 while Mr. Kalonji was driving back to Toronto. Mr. Kalonji telephoned Ms. Galbraith and spoke to her about the fraud - in particular he stated that they did not even ask Mensha for ID. This is important because from other conversations it is known that ID is often required to access the accounts.

[32] In relation to all the above conversations, the Crown, in her written and oral submissions gave very detailed suggestions of exactly what Mr. Kalonji and his alleged co-conspirators were doing and their exact roles. I have gone through all the calls and compared it to the expert evidence. While the Crown's theory about what is being said could be correct, I am not satisfied that it is the only interpretation. While I am confident that a fraud occurred, I am not confident that the fraud took place exactly as she described. Despite this, I am sure that the phone calls in issue are about account take over frauds and that Mr. Kalonji did travel to Ottawa to fraudulently withdraw funds from bank accounts.

(iv) Evidence of Actual Fraud in Relation to Bank Records

[33] In addition to the above calls, there were numerous BBMs where account numbers, passwords and security questions were passed back and forth. The Crown fairly conceded that despite the heavy traffic of bank account numbers and passwords that were transferred to and from Mr. Kalonji to a host of other people and despite the constant discussion about making money off these accounts, loading the accounts and needing identification to access accounts, there was very little corroboration from the bank records. The expert explained in his evidence that the nature of these kinds of frauds makes them very hard to track. He did also testify, however, that at the core of every account take over fraud there is an actual loss either by the bank or by the person whose account was accessed.

[34] Some bank records were filed, however, that did confirm the fraudulent conduct. I will only review two examples from the bank records.

[35] The first example is from late March. Mr. Kalonji received a BBM with the following message:

"Cibc. 4506445689449112 online bank!

Richave 12…telephoneonline! 817".

The texts that followed included the word "Calgary403".

[36] In records obtained from the CIBC, the police discovered an account with the same number as above. This account belonged to Peter Gboway who lived in Calgary. The account was opened on March 23, 2016, only days after the above text was sent. On March 24, 2016, $6000.00 was removed from a visa account belonging to a woman named Ms. Lemay. The money was then placed in a joint account that had been opened for her and Mr. Gboway. Ms. Lemay did not consent to opening such an account, did not know Mr. Gboway and did not consent to this money being transferred.

[37] A second withdrawal occurred from Ms. Lemay's account on March 24, 2016 in the amount of $2600.00. This money also went into the Peter Gboway joint account. Again, Ms. Lemay did not consent to the transfer of this money.

[38] It is the Crown's position that the above text message and bank records confirm that the account take over frauds were taking place and that there was a loss of funds, or at least a real risk of loss of funds. I agree. Given the proximity in time between Mr. Kalonji obtaining the above text messages and the accounts being accessed in a fraudulent way (as is evidenced from Ms. Lemay's lack of consent), the fact that the account holder is allegedly in Calgary, which is also referenced in the text, and the fact that in a call on May 16, 2016, Mr. Kalonji talked about having "strikers' in Calgary, in my view, this evidence confirms that Mr. Kalonji is involved in account take over frauds.

[39] Another example where the bank records confirm the meaning to be attached to the guarded calls and BBMs is from April 18, 2016 and April 19, 2016. On April 18, late at night Mr. Kalonji received a BMO account number, the name of the person on the account, a password and security questions and answers for the account from a person identified as CJ. The next morning, Mr. Kalonji sent a reply BBM where he stated that there is 3K on BMO. CJ then asked if more was coming and Mr. Kalonji replied that there was. He then wrote that the password was not working. CJ asked which one and Mr. Kalonji identified a specific account and password. Mr. Kalonji then asked "Its yours" to which CJ responded "Yea". Mr. Kalonji then wrote "Its ready". Mr. Kalonji then sent CJ a screenshot of an account belonging to a person named Joan Artillero where money ($1700.00) had been transferred out of her account. In a second screenshot it is shown that $1395.00 was transferred out of Mr. Brillantes's account on this same day. Bank records from the BMO establish that the account number sent to Mr. Kalonji late on April 18, 2016 was opened in the name of Mr. Kenesh. The bank records also show that the transfer of funds out of Ms. Artillero's account on April 19, 2016 went to Mr. Kenesh's account. Moreover, the transfer of funds out of Mr. Brillantes' account also went to Mr. Kenesh's account. The funds were then withdrawn from Mr. Kenesh's account. Affidavit evidence confirmed that one of the transactions was not made with consent of the victim. The second victim could not be located. In my view, the bank records serve to confirm that Mr. Kalonji is given account numbers that are to be used in furtherance of the account take over frauds. Funds are transferred from victim accounts to the fraudulent accounts and then withdrawn by one of the people working with Mr. Kalonji.

(v) The Africa Discussions

[40] On April 4, 2016, Mr. Kalonji was captured on the intercepted calls talking to a person that the Crown alleges is Mr. Simmons-Mckenzie about some scheme that he did with Ace some time ago where someone got "bagged" but Mr. Kalonji still made money. Mr. Kalonji then said that if he "eats" with Ace you settle for a percentage. This word "eats" is seen a lot in the phone calls. When I review the calls all together, it is my view that this word is slang for illegally taking money out of the accounts they have set up. This is the only reasonable inference to be drawn when all the calls are considered. In light of this, I interpret this conversation to mean that Mr. Kalonji was indicating that when someone takes the money out for Ace they get a percentage and he gets a percentage of the profits.

[41] On this same date, Mr. Kalonji then spoke about G.H, a person that Mr. Kalonji frequently spoke with during this time frame, about taking money out of accounts. There are then a series of communications where Mr. Kalonji and the person alleged to be Mr. Simmons-Mckenzie talked about a deal with some people in Africa. The plan was to get a percentage and then effectively double-cross the people from Africa. Eventually, two BBMs were sent with account numbers and passwords. Most telling, in a BBM later on the same date, Mr. Kalonji told the person alleged to be Mr. Simmons-McKenzie to ignore the second one, it is CIBC. He further wrote that the second one is RBC. There is no doubt in my mind that they are talking about the two banks, CIBC and RBC.

[42] Additional conversations took place between the same parties where more account numbers were sent along with a discussion about percentages.

(vi) Mr. Kalonji and Ms. Robinson – May 2016

[43] In May, 2016 there were a series of calls between Mr. Kalonji and Ms. Robinson where he asked her to "make calls" and raise her limit to two thousand. He went on to state that she should not call from her own number. If this was a legitimate increase in her own account, there would be no issue with calling from her own number. Given all the evidence of Mr. Kalonji's fraudulent behaviour with bank accounts, the only inference to be drawn from his asking Ms. Robinson to increase her limit but not from her own phone is that the account in issue was a complicit or unlawful account used in furtherance of a fraud. Moreover, once Ms. Robinson confirmed that the limit was increased, Mr. Kalonji called GH, a person who from all the intercepted communications was clearly involved in account take overs, and confirmed with him that the amount was increased. Again, if this was a legitimate increase to Ms. Robinson's account, why would Mr. Kalonji notify GH about it?

[44] On May 16 Mr. Kalonji and Ms. Robinson spoke again but her focus was clearly on a car accident she had recently been in and dealing with insurance. Mr. Kalonji, however, wanted Ms. Robinson to go online and look at a transaction. After being asked a couple of times, she finally agreed to do this. Right after this call, Mr. Kalonji called GH and spoke to him about an overdraft. Ms. Robinson then spoke to Mr. Kalonji again and asked him what she should say about where she works. This latter question supports the inference that Ms. Robinson is being deceitful in this application.

Findings of Fact

[45] I have made brief mention above about some of my findings of fact. I will elaborate on my findings here.

[46] In my view the following conclusions are the only reasonable conclusions that can be drawn from the entirety of the evidence:

a) Mr. Boursiquot and Mr. Kalonji are partners. This is evident from their ongoing communications about their activities around making money and the fact that they call each other partner;

b) Ace, at times, is working with Mr. Boursiquot and Mr. Kalonji. This is evident from the fact that Mr. Boursiquot calls Ace "partner" and that Mr. Kalonji and Ace talk about Mr. Boursiquot in a way that suggests they all work together. Moreover, Mr. Henry and Mr. Kalonji speak about Ace as though he is involved in some of their activities;

c) Mr. Boursiquot, Mr. Kalonji and Ace are all involved in account take over frauds. This is evident from the discussions about banks, hackers, insiders and making money from accounts and the slew of bank account numbers and passwords that are messaged between the parties. It is also evident from Mr. Kalonji's discussions with Mr. Boursiquot about his trip to Ottawa and their less than productive enterprise in Niagara. The bank records, when linked up with BBMs and conversations also confirms that that they are illegally creating accounts, linking accounts, loading accounts and withdrawing funds;

d) Mr. Kalonji has hackers that are able to manipulate bank accounts in furtherance of his fraudulent acts. This is evident from his admission about hackers as well as from other calls where unknown men talk about going online to load accounts;

e) Mr. Kalonji has people that will go to the bank and withdraw money and open accounts when necessary. Mr. Kalonji's common strikers are referred to as Mensha and GH;

f) Whenever numbers that look like bank account numbers are passed over the BBMs along with words that look like passwords and questions that look like security questions, I am satisfied that this is in fact what they are. I reach this conclusion because for a number of these alleged bank account numbers, the Crown was able to prove that it corresponded to an actual bank account that was set up shortly prior to the account number being passed on;

g) The account numbers relate to an account that was set up solely to be joined to a victim's bank account so that money could be transferred out of the victims account and into one of the bank accounts set up by Mr. Kalonji's people. This is consistent with the bank records establishing the transfer from victims' accounts and victims' affidavits confirming they did not consent to such transfers;

h) Ms. Galbraith knew of Mr. Kalonji's fraudulent activities. This is clear from their telephone calls, in particular the call on March 9, 2016. Moreover, that Ms. Galbraith knew that she was assisting Mr. Kalonji in his fraudulent acts when she helped with the Winnipeg banks in early February;

i) Ms. Munyenga set up the introductions between Mr. Kalonji and her brother, knowing that it was about illegal frauds and that she intended to make a profit from this. This is clear from the content of these calls, her assertion that she was to get a percentage of the profits;

j) Ms. Robinson increased limits for a complicit account for Mr. Kalonji in May of 2016;

k) Jimmy was involved in the fraudulent transactions given the transfer of identity documents and account numbers that he was involved in.

Issues Raised at Trial

[47] With these findings of fact made, I now turn to the issues which are as follows:

a) Has the Crown proven that "Jimmy" is Mr. Simmons-McKenzie or that Ms. Munyenga and Mr. Henry ever spoke to Mr. Kalonji?

b) Has the Crown proven that a fraud took place?

c) Has the Crown proven that all the defendants conspired together to commit fraud?

d) Has the Crown proven that there was a criminal organization?

e) If the Crown has proven that a criminal organization existed, has the Crown proven that each person committed criminal organization related offences?

f) Has the Crown proven that Mr. Henry and Mr. Kalonji conspired to traffic in a firearm?

g) Has the Crown proven that Mr. Simmons-McKenzie and Mr. Kalonji trafficked in identification documents for a criminal organization?

I: Voice Identification

a) Is Jimmy Mr. Simmons-McKenzie?

[48] There is no single conversation where the name Tyrone Simmons-McKenzie is uttered. There are also no telephone numbers used in this case that are registered to a Tyrone Simmons-McKenzie. Nonetheless, all the phone conversations and BBMs that come from the number 647-627-6320, the Crown alleges, are from Mr. Simmons-McKenzie. The Crown argued that the following evidence links Mr. Simmons-McKenzie to this phone number. Firstly, the person who used this number frequently referred to himself as Jimmy or was called Jimmy by others. Secondly, in one communication, Jimmy wrote to Mr. Kalonji that he lives at 165 Legion Road. 165 Legion Road is a large apartment complex. Thirdly, in two conversations on February 17, 2016, Mr. Kalonji told two different people that he was going to help "Jimmy" move. The last of these two calls took place at 1:17 p.m. Fourthly, at 1:30 p.m. on this same day, a surveillance crew saw Mr. Kalonji in a U-Haul truck with Mr. Simmons McKenzie. They were loading furniture. Finally, February 18, 2018 Mr. Simmons-McKenzie was seen with Mr. Boursiquot.

[49] Whether or not the above evidence establishes that Mr. Simmons-McKenzie is the person on line 647-627-6320 depends on the admissibility and use to be made of Mr. Kalonji's conversations with the two unknown males about his intention to help Jimmy move. I find they are not admissible against Mr. Simmons-McKenzie and cannot be used to show that Mr. Simmons-McKenzie is Jimmy. These two conversations, to be probative must be used for the truth of their contents. They therefore amount to hearsay and hence are not admissible. I note that at no point did the Crown seek to rely on any exception to the hearsay rules. It was the Crown's position at trial that these conversations were not hearsay. She argued that the fact that Mr. Kalonji made these statements is probative on the issue of identification.

[50] In R. v. Evans, [1993] S.C.J. No. 115, the admissibility of an utterance from an unknown declarant was deemed admissible as some evidence that the declarant was the defendant without violating the hearsay rule. In reaching this conclusion, the court stated:

17 The respondent argued that the statements are not hearsay because the fact that the appellant owned a large pregnant dog and had worked as a chain-link fence installer had been independently proved. This argument was apparently accepted by the Court of Appeal. The appellant argued that the statements are hearsay because they had no probative value unless assumed to be true. Each of these submissions is slightly off the mark.

18 The ultimate value of these statements was to prove that the appellant and the purchaser of the getaway car were one and the same person. There was independent proof that the appellant worked as a fencer, and that he owned a large pregnant dog. If the purchaser could be proved to have a large pregnant dog and have worked as a fence installer, this would suggest that the appellant was the purchaser. However, there is no proof that the purchaser owned a dog or worked as a fencer unless the statements made to the Boutets are assumed to be true. The statements cannot be used for the truth of their contents unless they are admissible under an exception to the hearsay rule.

19 That being said the statements still have some probative value as non-hearsay. Quite apart from the truth of its contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made are probative as it narrows the identity of the declarant to the group of people who are in a position to make such representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. I emphasize the statements are not being used for the truth of their contents at this stage.

[51] The present case is distinguishable from R. v. Evans. The utterances in issue are not being used to establish the identity of the declarant, they are going in to prove that Mr. Kalonji is talking about Jimmy. The comments made by Mr. Kalonji only help establish that Mr. Simmons-McKenzie is Jimmy if Mr. Kalonji really was going to help Jimmy move that day. In other words, it is probative for identification only if it is true. This is a hearsay purpose.

[52] The Crown also relied on the case of R. v. Hersi, 2015 ONSC 2039, which was upheld by the Court of Appeal in 2018 ONCA 1082. In that case, the Crown sought to admit three conversations captured on an intercept. Mr. Hersi was not part of the conversations, but a person referred to as "H" was discussed in each of these calls. The Crown sought to admit all three calls to help prove that "H" was Mr. Hersi. The trial judge only admitted the first of the three calls. In relation to the first call, the speaker stated "and they tell me I can't roll with Her..H right?" In ruling that this call was admissible, Justice Clark held that it was not admissible to prove that the caller was in fact forbidden to associate with Mr. Hersi or with H as this was hearsay. It was, however, admissible because the mere fact that it was said was probative. Justice Clark held that the fact that the caller first said "Her" which is almost like Hersi, and then quickly corrected himself to say "H" and the fact that the caller had bail terms to have no contact with Mr. Hersi together helped prove that Mr. Hersi went by the nickname "H". Justice Clark further held that it was admissible to rebut the defence assertion that the nickname "H" could apply to someone else.

[53] The latter two calls were not admissible due to reliability and necessity concerns.

[54] In upholding the trial judge, the Court of Appeal stated at paragraph 16:

The trial judge admitted the evidence on the basis that it would not be used for its truth, but only to establish the state of mind of the declarant. We see no error in this analysis. We also observe that the link between H and Hersi is found elsewhere on the record. Consequently, even if the evidence was wrongly admitted, the impact was inconsequential.

[55] Unlike the Hersi case, in the case at bar, the Crown is not seeking to admit the phone conversations for Mr. Kalonji's state of mind. Instead, the Crown is seeking to admit it for the truth that Mr. Kalonji was going to move a person named Jimmy. As a result, in my view, the statements at issue are hearsay and not admissible.

[56] Without this evidence, the Crown cannot prove that the person communicating from phone number 647-627-6320 is Mr. Simmons-McKenzie. This is the only evidence linking Mr. Simmons-McKenzie to the alleged fraud conspiracy and alleged criminal organization. As a result, he is found not guilty of these offences. Moreover, in light of my ruling on the earlier Charter motions, the Crown has asked the court to stay the charges of possession of identification documents, possession of a loaded restricted fireman, possession of a firearm without a license and careless storage of a firearm. The question remains as to whether or not the substantive offence of fraud has been made, but as I have some additional questions about this singular count, it will not be addressed in this ruling.

(b) Voice Identification for Ms. Munyenga

[57] Ms. Champsi, on behalf her client, Ms. Munyenga, argued that voice identification was not established beyond a reasonable doubt in relation to her client. Respectfully, I disagree. Firstly, in a couple of conversations, the person alleged to be Ms. Munyenga identifies herself by her first name "Prisca" which is Ms. Munyenga's first name. Secondly, a phone with the phone number attached to the calls that are alleged to have been made by Ms. Munyenga was located with Ms Munyenga at the time of her arrest. This further links Ms. Munyenga to the phone number. Finally, I have listened to all the calls and I am satisfied beyond a reasonable doubt that they are all made by the same person. I am mindful of frailties in voice identification, but when I consider all the evidence, I am satisfied beyond a reasonable doubt that it is Ms. Munyenga on the telephone calls. I appreciate that there is no voice attached to the BBMs, but given the number of voice calls from this number, I am satisfied that the BBMs also came from Ms. Munyenga.

(c) Voice Identification for Mr. Henry

[58] Ms. Brunet, on behalf of her client, argued that the Crown has not proven beyond a reasonable doubt that Mr. Henry was in fact on the wiretaps. Respectfully, I disagree. In my view the evidence clearly establishes, beyond all doubt that Mr. Henry was the person the Crown alleges spoke to Mr. Kalonji about the frauds in March, 2016. I note that on April 20, 2016 a text was received at phone number 647-627-1420 where the person sending the text refers to the receiver as "Kyle". On April 22, 2016 a call was made from this same number. The caller identified himself as "Kyle Henry". On April 25, this same number received another text and the sender referred to the receiver as "Kyle". Finally, on April 25, 2016 this same number received a call from someone named Arlie, the receiver responded to the name Kyle. Moreover, having listened to all the calls involving phone number 647-627-1420, I am satisfied that the voice is the same. In relation to this BBMs from this number, I am satisfied that the only reasonable inference to be drawn given the content of the BBMs and the regular use Mr. Henry had with this phone number, that the BBMs also came from Mr. Henry.

II: Did Mr. Henry and Mr. Kalonji Commit the Offence of Fraud?

[59] The Crown only charged Mr. Henry, Mr. Simmons-McKenzie and Mr. Kalonji with the substantive offence of fraud over $5000.00. As previously stated, I will address Mr. Simmons-McKenzie in a separate judgment. The fraud alleged against Mr. Henry and Mr. Kalonji relates to the three cards and the transactions that flowed from the use of these three fraudulently-obtained and loaded bank accounts.

[60] The offence of fraud includes the following essential elements:

a) Proof of a dishonest or deceitful act;

b) Proof of deprivation or risk of deprivation (see R. v. Zlatic, [1993] 2 S.C.R. 29);

c) Subjective awareness of committing the prohibited act;

d) Appreciation that deprivation could arise from the conduct.

[61] In my view, in relation to Mr. Kalonji the offence of fraud is easily made out. The evidence establishes that Mr. Kalonji was engaged in account take over frauds where money was fraudulently transferred from a victim's account to a complicit account and then withdrawn by someone at the request of Mr. Kalonji. For many of the transactions, the Crown could not prove loss through bank records, but did prove through the intercepts that the frauds were completed successfully. At times, the runners or strikers confirmed that it was successful. Other times, Mr. Kalonji indicated in conversations that money was made through the transactions. For others, the Crown was able to prove actual loss through the bank records filed. Given the number of fraudulent transactions that took place and the amounts of money being transferred, I am also satisfied beyond a reasonable doubt that the amount of the fraud exceeded $5000.00.

[62] I am equally satisfied that the Crown has proven the offence of fraud over $5000.00 as it relates to Mr. Henry. Mr. Henry is captured on the intercepted communications discussing "hitting the bank" and passing account numbers. Moreover, on February 20, three bank account numbers were transferred between Mr. Kalonji and Mr. Henry along with the passwords to these accounts. The police were able to locate two of the account numbers and when the accounts were tracked, the bank records establish that money had been transferred from a third party's account into the new account without any apparent consent or relationship between the parties. The accounts were then quickly depleted.

[63] In my view, this is sufficient evidence to establish that Mr. Henry committed the offence of fraud. I am mindful that the victims in relation to the two accounts linked directly to Mr. Henry did not file affidavits of loss nor did they testify. I nonetheless am satisfied that the Crown has proven deprivation or the risk of deprivation in excess of $5000.00. Firstly, I have no doubt that there was no consent to transfer these funds. Given the overall scheme taking place, the guarded nature of the conversations and the type of transactions at play, there is no doubt that funds were fraudulently being obtained. Secondly, while no dollar figure can readily be attached to Mr. Henry's frauds, given the overall scheme, the length of time that Mr. Henry used the cards and the fact that he was manipulating three accounts, I am satisfied that the loss exceeded $5000.00.

III: Conspiracy to Commit Fraud

a) The Co-Conspirators Hearsay Exception

[64] In the case at bar the Crown alleges one global conspiracy between all the defendants. She argued that the unlawful object of the conspiracy was account take over frauds. In support of her case, the Crown seeks to admit four telephone communications against all the defendants pursuant to the co-conspirator's hearsay exception. The conversation in issue are as follows:

a) On February 9, 2016 Mr. Boursiquot talked to Ace about his insiders at the bank. He described how the insiders do their job and there was discussion about the risk, or lack thereof, that they will be arrested.

b) On February 10, 2016 Mr. Boursiquot and Ace were captured on a telephone call talking about a particular account with a significant sum of money in it.

c) On February 10, 2016, Mr. Boursiquot spoke to Ace again about money just stolen from D.C. (Mr. Kalonji).

d) On February 11, 2016, Mr. Boursiquot spoke to Ace again. During this call they discuss passing a phone code to check a balance.

[65] The test to be applied under the co-conspirators exception to the hearsay rule was articulated in R. v. Carter, [1982] 1 S.C.R. 938 and is as follows:

a) The Crown must prove beyond a reasonable doubt that there is a conspiracy;

b) The Crown must prove on a balance of probabilities that the defendant was a member of the conspiracy; and

c) The Crown must prove that the statements were made in furtherance of the conspiracy.

[66] Simply defined, a conspiracy is an agreement between two or more people to commit an unlawful act. The conspiracy alleged in the case at bar is an agreement between Mr. Kalonji and others to commit numerous frauds through an account take over scheme that involves numerous players to make it happen. In my view, the Crown has proven that there existed a global conspiracy to commit frauds by Mr. Kalonji, Mr. Boursiquot and Ace. I reach this conclusion for a number of reasons. First of all, in light of my findings of fact above in relation to Mr. Kalonji committing frauds over a period of time, the Crown has proven that Mr. Kalonji worked with others to open accounts, transfer money from victim's accounts and withdraw funds from the accounts. This type of fraud required the participation of numerous actors. From the conversations between Mr. Kalonji, Mr. Boursiquot, Ace and others, it is evidence that Mr. Kalonji has the hackers, Mr. Boursiquot and potentially Mr. Kalonji have people on the inside providing account information and, Mr. Kalonji has what he calls "strikers", people who go to the banks to withdraw the money. Secondly, Mr. Kalonji and Mr. Boursiquot appear to update each other on their activities, so while Mr. Kalonji has his own people that he works with, he does so in consultation with Mr. Boursiquot. The best example of this is in relation to the Ottawa transactions. Thirdly, when money was stolen from Mr. Kalonji and acts of certain strikers were discussed, Mr. Kalonji and Mr. Boursiquot discussed whether or not to continue engaging in someone's services. Fourthly, Mr. Boursiquot and Mr. Kalonji called each other "partner". As a result, I am satisfied beyond a reasonable doubt that there was an agreement by two or more people to work together to commit account take over frauds.

[67] For the same reasons outlined above, I am further satisfied on a balance of probabilities that Mr. Kalonji, Mr. Boursiquot and Ace were part of this conspiracy. Finally, I am satisfied that the four conversations in question were made in furtherance of the conspiracy. The first call is Mr. Boursiquot providing necessary details about how the inside people work. This is clearly in furtherance of the conspiracy – so that his partner can understand all the players. Moreover, the next two calls are directly about the profit and loss attached to the overall scheme, and the final call relates directly to a positive step necessary to complete a particular take over. These calls are therefore admissible against Mr. Kalonji.

b) Was There a Conspiracy?

(i) Relevant Legal Principles

[68] It is obvious from my above comments that I am satisfied beyond a reasonable doubt that a conspiracy existed between Mr. Kalonji, Mr. Boursiquot and Ace but I will briefly expand on this.

[69] As previously noted, the essential elements of a conspiracy include an agreement by two or more persons to do an unlawful act. The participants in the conspiracy must all have an intention to agree to commit an unlawful act and the agreement must be completed. There must also be a common design. Ultimately, the essence of a criminal conspiracy is proof of an agreement (United States v. Dymar, [1997] 2 S.C.R. 462 at para 86, and R. v. Bullen, [2018] O.J. No. 4057 (SCJ) at paragraph 47).

[70] In R. v. Bullen, supra, at paragraph 118, citing from R. v. Buttazzoni, 2015 ONSC 6411, the court identified the legal issues the court must assess in deciding if a conspiracy existed.

[42] It is not necessary that it be demonstrated that each co-conspirator was aware of all the details of the common scheme, but simply that each had knowledge of its general nature.

[43] It is well-established that the parties to such an agreement need not have been charged or on trial at the same time; or that the agreement include terms as to the duration of the agreement or the roles of those who are parties to the agreement; or that all parties have to join the agreement at the same time and stay involved in the agreement for the same period or leave the agreement at the same time.

[44] Although a meeting of the minds between the conspirators, with respect to the object of their agreement, must be established, the Crown need not prove that each conspirator was aware or communicated with, all other conspirators; R. v. Longworth et al, (1982), 67 C.C.C. (2d) 554 (Ont.C.A.).

[45] In determining whether the requisite actus reus of the offence of criminal conspiracy is present, the inquiry is whether an agreement was reached by the conspirators and not what each conspirator may have done in their efforts to realize their common goal. The fact that one or more parties to a conspiracy agreement is kept in the dark as to the relationship with and as between other parties to the agreement, and the fact that one or more parties to the agreement has no contact with other parties to the agreement, are strategies that may be expected to characterize a conspiracy to import drugs; R. v. Nieme, (2006), 13949 (Ont.C.A.), 208 C.C.C. (3d) 119 at paras. 65-66. (Ont.C.A.).

[46]… The acts of the co-conspirators in carrying out the planned illegal act are not necessarily irrelevant, as the acts carried out by the co-conspirators can often furnish evidence of the existence of an agreement; R. v. Gassyt at para 17. The offence of conspiracy is more likely to be proven by evidence of overt acts by the conspirators, from which the prior agreement can logically be inferred.

[59] It is not necessary that all members of conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object…

[71] At the end of the day, in assessing whether or not a conspiracy existed, it is helpful to ask if there was an agreement about the acts committed that all the alleged participants were privy or, to put it another way, were the acts of the accused done in pursuance of a criminal purpose held in common between them. All actors have to act towards one common purpose.

[72] Some conspiracies maintain the same participants throughout. Others grow and shrink over time with some parties leaving the conspiracy part way through and others joining in. Where a defendant is alleged to have joined the conspiracy at a date later than the original participants, the Crown must show that this person was privy to the agreement between the existing conspirators. This was highlighted in R. v. Burns, [1979] B.C.J. No. 1547 (B.C.Co.Crt.), where the court stated at paragraph 33:

I can find no evidence, however, that Burns ever met either Chapdelaine or Wong; nor can I find any evidence of association by words or deeds between Burns and Chapdelaine or Wong; nor is there any evidence from which it could be inferred that Burns was aware or should have been aware that LaMarche and Patry had been dealing with Chapelaine and Wong. In short, I can find no evidence from which it can be inferred that Burns knowingly joined in an existing agreement to commit the unlawful act alleged.

[73] The main argument in the case at bar is that the Crown has failed to establish one global conspiracy. Instead, at its highest the evidence supports the existence of a series of smaller conspiracies. For this reason, all defence counsel argued that their clients should be found not guilty of the conspiracy charge. In R. v. Burns, supra, the court, at paragraph 39, identified how the court should assess the evidence of a conspiracy when there may be more than one conspiracy taking place:

39 In summary, it is my view that when, upon a charge involving one conspiracy, evidence is adduced to indicate that there are two or more conspiracies, one must first consider whether they consist of a principal conspiracy and one or more subordinate conspiracies. If this evidence indicates a principal and a subordinate conspiracy, there is no basis for a nonsuit motion. If the evidence is as consistent with a finding of subordinate conspiracies as with separate conspiracies, this evidence should be weighed by the trier of fact and thus there is no basis for a nonsuit motion. If the evidence points only to the existence of separate conspiracies, then one must consider whether or not any of these separate conspiracies fall within the ambit of the indictment and, if so, then there is no basis for a nonsuit motion.

[74] In assessing whether there is more than one conspiracy taking place, it should be noted that "…participants in a conspiracy need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it" (see R. v. Bullen, supra, at paragraph 63).

(ii) Application to Facts in the Case

[75] I am satisfied beyond a reasonable doubt that Mr. Kalonji, Mr. Boursiquot and a person referred to as "Ace" formed an agreement to carry out account take over frauds by using inside people to give them account information, by using hackers to transfer money from victims' accounts to complicit accounts and to use other people to help with withdrawing the fraudulently-obtained funds from the complicit account. On all the evidence, it appears that while Mr. Kalonji, Mr. Boursiquot and Ace had their own people to help carry out individual fraudulent transactions, they nonetheless had an agreement to carry out these frauds and clearly intended to work together. I have already identified above the factors that I relied upon in reaching this decision.

[76] The more complicated factor is whether or not the remaining defendants were part of this conspiracy. In light of my findings in relation to voice identification, I am left in reasonable doubt as to whether Mr. Simmons-McKenzie was a member of this conspiracy.

[77] In relation to Mr. Henry, Mr. Henry is largely captured on the wiretaps talking to Mr. Kalonji. Mr. Henry effectively works three bank cards with Mr. Kalonji. The question is whether this makes him a member of the bigger conspiracy. To that end, as stated above, the Crown need not prove that every member of the conspiracy knows about each other. For example, In R. v. Niemi, [2006]. O.J. No. 1727 (CA), the issue arose about whether Mr. Niemi, a pilot for drug importers, was a member of the importing conspiracy. The Court of Appeal noted that as the pilot, Mr. Niemi would have no need to speak to other members of the conspiracy, as such the absence of evidence that he spoke to different members of the conspiracy was neutral evidence. The Court of Appeal also noted that in a conspiracy, all members do not need to know the identity of each other and there is no requirement that members in a conspiracy have contact with more than one member of that conspiracy. They just need knowledge of the overall agreement and the intention to engage in the common unlawful object.

[78] To prove that Mr. Henry was a member of the conspiracy, the Crown need only prove that Mr. Henry was engaging in fraudulent conduct with Mr. Kalonji; that he knew about the broader agreement to engage in account take over frauds; and he agreed to be part of this overall agreement. In my view, the Crown has met their burden. Mr. Henry was an active participant in account take over frauds with Mr. Kalonji. He was also aware of other participants and working with the other conspirators. For example, on February 19, 2016, Mr. Henry spoke to Mr. Boursiquot about having the three cards. The only reasonable inference from this is that Mr. Henry is talking about the same three cards he was talking to Mr. Kalonji about and that Mr. Boursiquot is involved in "linking" up the cards and the overall fraud.

[79] In relation to Ms. Munyenga, the evidence against her really only relates to the Ottawa transaction. I am satisfied beyond a reasonable doubt that Ms. Munyenga connected Mr. Kalonji with her brother in order to help him engage in fraudulent transactions in Ottawa. There is also evidence that this Ottawa fraud was part of the overall conspiracy with Mr. Kalonji and Mr. Boursiquot because Mr. Kalonji canvassed this fraud with Mr. Boursiquot before travelling to Ottawa. There is no evidence, however, that Ms. Munyenga was aware of the broader conspiracy. She may have known about it, but it is equally likely that Ms. Munyenga was only agreeing to part of the smaller or different conspiracy to commit fraud with her brother and Mr. Kalonji. I am mindful that she need not know all the participants, but she does have to agree to join in the broader conspiracy and I cannot find beyond a reasonable doubt that she did. I therefore find her not guilty of this count. I appreciate that this is a somewhat unsatisfactory result given her clear involvement in some kind of fraud, but it is nonetheless the conclusion I much reach given the evidence that was presented to this court.

[80] Ms. Robinson was first captured on the wiretaps, at least in any meaningful way, in late April 2016 when she communicated with both Mr. Kalonji and GH. The first key conversation occurred on May 14 when Mr. Kalonji asked Ms. Robinson to call the same people again and increase her limit. This suggests this is not the first transaction. Mr. Kalonji indicated that he was going to send her a picture and told her not to call from her own number. These two additional factors, in the context of the entire case, confirm that Mr. Kalonji was asking Ms. Robinson to engage in a fraudulent act in relation to increasing her limit. In a later call, Ms. Robinson confirmed that she did increase the limit. Sometime later, Mr. Kalonji asked Ms. Robinson again to raise her limit. Ms. Robinson agreed. She then called Mr. Kalonji and told him that the account was blocked, so she was going to have to go to the bank. While I have no doubt that this is an illegal act, I am not confident that Ms. Robinson knew about the bigger conspiracy. She is clearly agreeing to commit a fraud with Mr. Kalonji but there is no evidence that she is aware of the broader conspiracy to commit account take over frauds. I am therefore left in a reasonable doubt that she agreed to be or intended to agree to a broader unlawful object of account take over frauds.

[81] Ms. Galbraith, in my view, is a different position than Ms. Munyenga and Ms. Robinson. In early February, Ms. Galbraith helped Mr. Kalonji with an account take over fraud with accounts in Winnipeg. In my view this is the only inference to be drawn from all the evidence around these calls and bank records from early February. There is additional evidence that Ms. Galbraith was aware of Mr. Kalonji's fraudulent activities. For example, when Mr. Kalonji is driving back from Ottawa, he telephoned Ms. Galbraith and let her know about the success of the transaction and the people he was with, which include other clear members of the conspiracy – Mensha and Jimmy. In light of this additional evidence, I am satisfied beyond a reasonable doubt that Ms. Galbraith was aware of the overall conspiracy and was member of the overall conspiracy. I appreciate that her role was small and limited to one small period of time, but as noted above, a member of a conspiracy does not need to be involved in all aspects of it. The important part is the agreement to be carry out an unlawful object. I am satisfied that Ms. Galbraith did so and had the intention to do so.

[82] I am mindful that the Crown has failed to prove that all the persons listed in the offence were members of the conspiracy. This is not fatal to the case against Mr. Kalonji, Mr. Henry and Ms. Galbraith. As was stated, in R. v. Douglas, [1991] 1 S.C.R. 301 at para. 41:

….If the conspiracy proven includes fewer members than the number of accused or extends over only part of the period alleged, then the conspiracy proven can still be said to be the same conspiracy as that charged in the indictment. In order to find that a specific conspiracy lies within the scope of the indictment, it is sufficient if the evidence adduced demonstrates that the conspiracy proven included some of the accused, establishes that it occurred at some time within the time frame alleged in the indictment, and had as its object the type of crime alleged. This point was very well made by Groberman in the article "The Multiple Conspiracies Problem in Canada" (1982), 40 U.T. Fac. L. Rev. 1, at pp. 9-10:

Unless the indictment is unusually precise, it will normally merely specify the type of offence that was the subject of the agreement, and the persons alleged to have been involved, along with a period of time over which the conspiracy is alleged to have occurred. Even if the conspiracy proven includes fewer members than the number of accused charged, or extends over only part of the period alleged, the conspiracy charged can be said to be the same conspiracy as that proven. Thus, in order for a specifi c conspiracy to lie within the scope of the indictment, it is only necessary for it to have included some of the accused, occurred at some time within the span alleged in the indictment, and had as its object the type of crime alleged.

[83] In light of the above findings, I am satisfied beyond a reasonable doubt that there was a global conspiracy by Mr. Kalonji, Mr. Boursiquot and Ace to commit account take over frauds and that both Mr. Henry and Ms. Galbraith were members of this conspiracy and did acts in furtherance of this conspiracy. I therefore find Mr. Kalonji, Mr. Henry and Ms. Galbraith guilty of conspiracy to commit fraud. I find Ms. Munyenga and Ms. Robinson not guilty of this count.

IV: Criminal Organization

[84] Mr. Kalonji is charged with four criminal organization related offences. He is charged with instructing a person to commit the indictable offence of fraud in association with a criminal organization (section 467.13 of the Criminal Code), committing the offence of fraud in association with or for the benefit of a criminal organization (section 467.12 of the Criminal Code), participating in activities for the purpose of enhancing the ability of the criminal organization to commit the offence of fraud and with trafficking in identity information at the direction of or in association with a criminal organization.

[85] Ms. Munyenga, Ms. Galbraith, Ms. Robinson and Mr. Henry are all charged with participating in activities for the criminal organization. Mr. Henry is also charged, along with Mr. Simmons-McKenzie, with committing the offence of fraud for the benefit of a criminal organization. Moreover, Mr. Simmons-McKenzie is also charged with trafficking in identity information for the benefit of a criminal organization.

[86] The first step in determining if these offences have been made out is to determine if there was in fact a criminal organization at play. If there is not, then the offences cannot be made out. As was noted in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211:

To secure a conviction under 467.13, the Crown must prove, as a preliminary matter, the existence of a criminal organization and Venneri's membership in it.

[87] Section 467.1 (1) of the Criminal Code defines criminal organization as follows:

Criminal organization means a group, however, organized that

a) Is composed of three or more persons in or outside of Canada; and

b) Has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that if committed, would likely result in the direct or indirect receipt of a material benefit including a financial benefit, by the group or by any of the persons who constitute the group.

[88] Throughout her submissions Crown counsel properly argued that the definition of criminal organization must be applied flexibly. In R. v. Venneri, supra, Fish J. stated at paragraph 29:

…I agree with MacKenzie J.A. that a flexible approach favours the objectives of the legislative regime. In this context, flexibility signifies a purposive approach that eschews undue rigidity. That said, by insisting that criminal groups be "organized", Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code

[89] A criminal organization was described as follows in R. v. Beauchamp, [2009] O.J. No. 4872 (S.C.J.) at paragraph 155:

The group must therefore have " some form of structure and degree of continuity", but even a minimal amount may suffice:

• Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community [Venneri, at para. 36; emphasis added.]

[90] Using this definition, to make out a criminal organization, the Crown must prove that there was a group that worked together and that this group had some degree of organization, structure and division of labour. Moreover, the main purpose of this group must be to engage in criminal behaviour.

[91] After listening to all the calls, reading the transcripts of the calls that were not in English and reviewing the bank records and expert evidence, it is readily apparent that Mr. Kalonji is engaged in fraudulent conduct in relation to bank accounts. It also clear to me that his fraudulent activities required the assistance of other people including insiders, hackers and complicit account holders. While strikers and runners to do not appear to be strictly necessary, they were also used by Mr. Kalonji. The question I must ask is having made these findings of fact, does this make out the presence of a criminal organization.

[92] Crown counsel argued that the following factors establish that this was a criminal organization:

a) that there was a structure;

b) there was a clear division of labour;

c) the frauds extended to different geographical areas;

d) there was temporal continuity;

e) there was a cohesiveness to the group;

f) they shared in the profits;

g) they shared material assets.

[93] Counsel for the defendants argued that the frauds alleged were too haphazard and disorganized to make out a criminal organization. In response to this argument, it is my view that an organization can act haphazardly and be disorganized but still be an organization. Not all organizations are well run. The analysis is a bit more nuanced. If the group acts like they are working together for a common criminal end with an identifiable division of labour the group will meet the definition of a criminal organization no matter how poorly it is run.

[94] I have no difficulty finding that Mr. Kalonji and Mr. Boursiquot worked together, and that Ace at times worked with them, though I am less clear about Ace's actual role. At some points, it seems like he is a partner but at other points it is less clear. I am also satisfied that Mr. Kalonji and Mr. Boursiquot sourced out certain parts of their frauds. They had inside people that obtained bank account numbers and hackers. These factors strongly support a finding that there was a criminal organization. Having said that, there is very little real evidence before the court about how this worked. Were they acting as an organization or, was it really more a series of mini conspiracies with different people. For example, some of the calls suggest that while Mr. Kalonji largely conspired with Mr. Boursiquot to commit frauds, at times he conspired with others to the exclusion of Mr. Boursiquot. Moreover, given the vagueness of the communications it is difficult to discern, at least as I read the calls, any real structure of cohesiveness so as to identify a real organization.

[95] I am mindful that Crown counsel gave a detailed description of her interpretation of the intercepted communications, which if true does present a clear division of labour and a structure to the fraudulent enterprise. If I were to accept all the Crown's interpretations to the communications, then a criminal organization would be made out I am unable, however, to find that the Crown's interpretation of the vague and guarded calls is the only inference to be drawn or the proper inference to be drawn about the details revealed in these calls. The Crown has read so much into the guarded calls so as to make a convincing argument about an organization of fraudsters working to systemically defraud banks and bank account holders. As noted earlier in this judgment, while her detailed interpretation of calls may be accurate, I cannot be confident that it is. So while I agree that Mr. Kalonji and Mr. Boursiquot did work with others and paid people to assist them with their individual frauds, factually, I cannot find that there is a real structure to this or a defined division of labour.

[96] I agree with the Crown that Mr. Kalonji's fraudulent acts extended outside of Toronto. He spoke about his connections in Winnipeg to Ms. Galbraith and how some of his work had dried up. He also has connections in Niagara and Ottawa and potentially Calgary. Mr. Kalonji was also setting up a bank scam in Africa or with people from Africa. It is unclear to me if this is part of an organization or just Mr. Kalonji being involved in a bunch of other scams. Many of the frauds involve Mr. Boursiquot and are part of an ongoing conspiracy with him, but it is less clear if "Ace" is also involved. While I have no doubt that Mr. Kalonji's fraudulent acts were serious, prolonged and extensive, I am less clear if he is acting as part of a criminal organization.

[97] I further note that on the evidence that I do accept there appears to be no cohesiveness or clear division of profits and I am unable to find, factually, on the evidence, that there were shared assets. While Mr. Kalonji and Mr. Boursiquot appear to be engaged in a wide reaching conspiracy that takes place over many months, I cannot find that the overall conduct reaches the level of a criminal organization. They seem to conspire together generally, but then engage in a series of mini conspiracies with other people. In addition to the lack of cohesiveness and structure, the group has no identifiable name. The name "HOK" or "Heart of King" was mentioned a lot during the pre-trial motions and in a video from 2014, but there is no real evidence that any one before the court was a member of this group. There was some reference to a tattoo Mr. Kalonji got of HOK but otherwise details about the HOK was not really present in this trial.

[98] The Crown argued that this case is very similar to R. v. Beauchamp, [2009] O.J. No. 4872 (SCJ), where the court found a criminal organization to exist for a company whose main purpose was credit card frauds. In my view this case is readily distinguishable. Bar Code, the company in question in Beauchamp was a formal company, owned by two of the defendants. The company actively engaged in the sale of devices that were intended to be used to forge credit cards and the profits were for the benefit of one or more persons, in particular the owners of the company. The profits were also the source of money used to pay other defendants' salary. In the case at bar, there is no company, the group has no joint identity, there is no clarity about to whom the profits went on different transactions. While there is some evidence that certain people would make a percentage of certain deals, there is no consistency and no real structure.

[99] When I consider all the evidence, there are too many uncertainties about the scope of the account take over frauds and the different parties involved to allow me to find that the Crown has proven beyond a reasonable doubt that a criminal organization existed. As such, all the defendants are found not guilty on the criminal organization charges.

V: Trafficking in Identification for a Criminal Organization

[100] Mr. Kalonji and Mr. Simmons-McKenzie are charged with trafficking in identification for the benefit of a criminal organization. Given all the above evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. Kalonji did in fact traffic in identification. The bank numbers that the Crown has proved belonged to actual people which were sent through him is sufficient proof of this. For example, on April 21, 2016, an unknown male sent a text to Mr. Kalonji at 9:54 a.m. with an account number for an account at the TD bank. This unknown male then sent another text message which stated "it is percent 60 40". I take this to mean that one person gets 40% of the profits and the other person gets 60%. Two minutes later, Mr. Kalonji sent a text to Jimmy with the account information. Mr. Kalonji then sent a text to the unknown male stating that the percentage is "40%". The bank records filed with the court establish that the bank card number sent to Mr. Kalonji above belonged to a person named Josiah Deron Walker. No fraudulent activity was found on the card.

[101] On this same date, Mr. Kalonji received another TD bank account number and password. He then again sent this number to Jimmy. According to the bank records, this account belonged to Ms. T'Asia Freedom Bahadur. Again, no fraudulent acts were found on this account.

[102] Given the absence of evidence that Mr. Simmons-McKenize is "Jimmy", I must find Mr. Simmons-McKenzie not guilty of this offence. In light of reasons outlined above, despite the abundance of evidence that he was in fact trafficking in identification, given my findings that I am left in a reasonable doubt about the presence of a criminal organization and Mr. Kalonji's membership in a criminal organization, I must find him not guilty of this offence. The question then becomes whether Mr. Kalonji can still be found guilty of the offence of trafficking in identification because it is a lesser/included offence to the one charged.

[103] Pursuant to section 662 of the Criminal Code where the commission of the offence charged includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted of "an offence so included that is proved, notwithstanding that the whole offence that is charges is not proved".

[104] The law is clear that were the offence charged conspiracy to traffic in identification, the substantive offence of trafficking in identification is not a lesser or included offence (R. v. Sheppe, [1980] 2 S.C.J. No. 39). In R. v. G.R., 2005 SCC 45, [2005] S.C.J. No. 45, the Supreme Court of Canada held that an offence is an included offence if "its elements are embraced in the offence charged" or "if it is expressly stated to be an included offence." This is a strict test.

[105] In my view, the offence of trafficking in identification is an included offence of trafficking in identification for a criminal organization. This is because it is included in the enactment creating the offence charged. As was noted in R. v. G.R. at paragraph 31, "For my part, I would add that an offence would be included where the essential elements of this offence are part of the offence charged". In the case at bar, the offence of trafficking in identification is an essential element of the offence charged. I therefore find Mr. Kalonji guilty of this lesser included offence.

VI: Conspiracy to Traffic in Firearms

[106] Mr. Kalonji and Mr. Henry are also charged with trafficking in firearms. In support of this offence, the Crown identified a series of communications from March 15 and 16, 2016 that the Crown argued establishes that they were trafficking in firearms. The first call took place between Mr. Kalonji and a man referred to as Lewis. During this call, Mr. Lewis indicated that he had to pick "the girl up" from the airport but there are politics involved. Later in this call, it becomes clear that they are not talking about a girl, because Mr. Kalonji stated that he knows that there is a politic because "it came from somebody that don't want me to have it and all that". This comment makes no sense if they are talking about a person. Mr. Lewis responded by stating that they do not know that "it' is for Mr. Kalonji, lending further proof to the fact that Mr. Kalonji and Mr. Lewis are not talking about a girl. Mr. Lewis then talked about how this is the worst time because it is war time. It is unclear to me what this means.

[107] On March 20, 2016, Mr. Kalonji is captured on the intercepts talking to Mr. Henry. In this call, Mr. Kalonji told Mr. Henry to get "Little Josh" to hook him up with "the girls". It appears, however, that Little Josh is in the east right now so it cannot happen right away. Mr. Kalonji then stated, "I'm not going down there without those fucking fat ass bitches, man". The Crown alleges that they are talking about guns here. While I appreciate this is possible, having considered all these calls, I am left with a reasonable doubt that these calls are actually about the purchase, sale or transport of firearms.

[108] Ten minutes later Mr. Kalonji and Mr. Henry spoke again. I am unable to determine what they are actually talking about. It might be about firearms but it might not. At midnight or so, they speak again. From the content of this conversation it appears that they are in the same locations. There are further calls on March 21, 2016 from 3:00 am onwards where they spoke about the events of the evening, including a fight that broke out. I see nothing in these calls that supports the Crown's argument that Mr. Henry and Mr. Kalonji conspired to traffic in firearms. I therefore find them both not guilty of this offence.

VII: Failing to Comply with a Recognizance

[109] Both Ms. Munyenga and Mr. Kalonji are charged with failing to comply with their recognizances. The charge is particularized that they breached their recognizance by communicating with each other on June 2, 2016. The evidence in relation to these two charges is that on June 2, 2016, the day that Mr. Kalonji and Ms. Munyenga were arrested, they were found in the same residence, but in different rooms. No evidence was presented that they actually spoke to each other on this date. As a result, defence counsel argued that they should both be acquitted of this charge. I am mindful that there was a host of evidence that Ms. Munyenga and Mr. Kalonji communicated with each other between February 2016 and May, 2016 contrary to their bail conditions. They are not charged with breaching their bail on these dates, however, they are only charged with breaching their bail on June 2, 2016 – the one day where there is no evidence that they actually communicated. I am mindful that one reasonable inference from the prior communications and their presence in the same apartment is that they had been talking recently so it is reasonable to infer that they spoke on this date. It is equally reasonable to infer that they both arrived home at different times and did not speak at all on this date. I therefore find them not guilty of this offence.

Conclusion

[110] To summarize all my findings, Mr. Kalonji is not guilty on count 1 (Instructing Criminal Organization Fraud), count 2, (commit criminal organization fraud), count 3 (participate in a criminal organization fraud, count 7 (conspiracy to traffic in a firearm), count 8 (failing to comply with a recognizance). Mr. Kalonji is found not guilty of count 4 as charged but guilty of the lesser included offence of trafficking in identification. Mr. Kalonji is also found guilty of count 5 (fraud) and count 6 (conspiracy to commit fraud).

[111] Mr. Simmons-McKenzie is found not guilty of all the criminal organization offences (counts 2, 3 and 4). He is also found not guilty of conspiracy to commit fraud counts, except count 5 which is a fraud. Counts 10 through 13 are all stayed. In relation to count 5, I reserve my decision on this matter until I have heard further argument.

[112] Mr. Henry is found not guilty of the two criminal organization offences (counts 2 and 3). He is found not guilty of conspiracy to traffic in a firearm. Mr. Henry is found guilty of count 5 (fraud over $5000.00) and count 6 (conspiracy to commit fraud).

[113] Ms. Galbraith is found guilty of conspiracy to commit fraud (count 6) and not guilty of participate in a criminal organization fraud.

[114] Ms. Robinson and Ms. Munyenga are found not guilty on all counts.

Released: May 17, 2019

Justice Mara Greene