COURT FILE NO.: 10-A11210
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARCELLIN MUTONI
Defendant
Riad Tallim, for the Crown
Paolo Giancaterino, for the Defendant
HEARD: December 13, 14, 18 – 20, 2012
T.D. RAY, J
Introduction and Overview
[1] Mr. Mutoni faces one count of fraud over $5,000.00 between November 2 and November 26, 2007 of the complainant.
[2] In brief, the evidence is that several bank accounts belonging to the complainant were used in a fraudulent scheme to defraud her of approximately $20,000. Mr. Mutoni denied any involvement or any knowledge of any of the scheme, and denied introducing her to anyone. The complainant’s evidence was that Mr. Mutoni had befriended her, caused her to open up additional bank accounts, gave him her PIN numbers and bank cards to all of her accounts; that he introduced her to a cousin and a friend, and manipulated her to use her to withdraw money from her accounts which she gave to the two men. Finally her accounts were frozen by her banks as the fraudulent scheme which involved counterfeit cheques unfolded. The complainant received no benefit from the scheme. To the contrary, with loans and support from her family, she repaid the bank the losses from the fraudulent scheme. There is no doubt that a crime was committed. The only issue is whether there is evidence beyond a reasonable doubt that Mr. Mutoni was involved in the fraudulent scheme, and therefore guilty of the offence.
Crown Evidence
[3] The Crown evidence included bank witnesses as to the various accounts opened by the complainant, the various transactions that were evident from the statements, surveillance photos from an ATM, and conversations with the complainant as the fraud scheme became known. The police investigation which took almost two years to complete after the complainant’s reporting included no search warrants or production orders of Mr. Mutoni’s phone records for texts or telephone calls; and no request of the complainant that she keep her text messages and telephone records. Much later, the police asked her to go to her cell phone carrier to get telephone and text records, by which time they were unavailable. They conducted no investigation to determine Mr. Mutoni’s associates or activities.
[4] The complainant is 26 years of age and graduated from two business programs - Algonquin College and St. Lawrence College. At times during her evidence she became quite emotional. The complainant’s evidence was that she had met Mr. Mutoni in June, 2012 at a bar, and they had started an intimate relationship. She began to care a lot for him, and told him a great number of intimate details about her life, including that she had been suffering from depression following a sexual assault when she was 14, and was having some relationship issues with her father with whom she lived at the time. She gave the impression that she had fallen in love with him. Then at the end of August, Mr. Mutoni told her that while he wanted to end the sexual relationship with her because he had met someone else with whom he wanted to be exclusive, he wanted to continue a friendship with her. She said that Mr. Mutoni was always nice to her. Throughout her evidence she avoided any critical comment about the way Mr. Mutoni treated her. She said that at the time she was seeing a psychiatrist for counselling to help her cope with self-image and confidence issues as a result of the sexual assault. She was on several medications at the time. She disclosed her counselling to Mr. Mutoni but not that she was taking a number of medications.
[5] Her evidence was that Mr. Mutoni telephoned her in October, and asked her for a favour. They met at a Tim Hortons. He told her that his Uncle in Burundi wanted to start a business and needed to liquidate some assets to get the money for the new business. He said he was going to give her some cheques; she would cash them and then give him the money. She agreed she said, because he was her friend and she cared about him. He then asked her to open another account for a cheque to go into. She opened an RBC account, and told the teller that it was for the purpose of receiving money from her father – as instructed by him. He also asked her to open an account at Desjardins downtown– which she did. Mr. Mutoni gave her a cheque from Avis in the amount of $10,597.30 and had her deposit it into the RBC account. He gave her an Atlas cheque in the amount of $19,723.00, and took her to the Desjardins branch to deposit. She remembered meeting his cousin ‘Jigga’ in the car on that occasion. Mr. Mutoni asked her for the bank cards and PIN numbers and told her it was to protect his Uncle’s money. She said she had given him her bank cards and PIN numbers for her own personal accounts (Scotia and TD) earlier because he said he needed to be able to make deposits and withdrawals. Finally he gave her a Miller Paving cheque in the amount of $13,400.00 which he had her deposit into her Scotia account. Mr. Mutoni had told her to take her own money out of her accounts so as to not mix her money with his Uncle’s – which she did by way of transfer of $3700. She said it didn’t dawn on her that there was anything wrong; and that she trusted Mr. Mutoni completely. She said she didn’t ask questions because of her low self-esteem; she said she didn’t want Mr. Mutoni to think she was stupid.
[6] Then Mr. Mutoni called her to say that his cousin (Jigga) would pick her up to take her to the bank to withdraw money. Mr. Mutoni told her he couldn’t be there because he was busy. Jigga arrived at her place with an unknown male in a hoodie and over the next days drove her from place to place and made several withdrawals from her various accounts. When an ATM seemed to be blocking a withdrawal they took her to a Money Mart to make a withdrawal. She said she started to feel very uncomfortable, and became scared when the stranger with Jigga yelled at her. She told Mr. Mutoni and he said not to worry. She said she was in contact with Mr. Mutoni every day. She recognized Jigga and the other stranger from surveillance photos taken at an ATM in LaSalle, QC. at a time when her account was being accessed.
[7] The complainant said she had never been to Chomedy or Lasalle, and had no family or friends in Quebec. She said she had no reason then or now to travel to LaSalle or Chomedy, QC.
[8] Then she received a call from the TD Bank to go in. She called, and the person who called wasn’t in. This was followed by her boss at her part time job telling her that he couldn’t make her pay check deposit into her account. She said she called Mr. Mutoni and he said that he had done the same thing with his own account and had had no problem – and that he didn’t understand why her account was blocked. The complainant then called a friend at the TD Bank and told him the story. He told her the cheques she had deposited were likely fake. That same evening she told her mother what had been going on; then called a lawyer who told her to go to the police. She gave a statement to the police at 1:30 a.m. on November 25, 2007. She cancelled all her bank cards. The next day she received a text message from Mr. Mutoni saying he was going out of town. He wouldn’t have known that she had gone to the police.
[9] The complainant said the reason she never communicated her own concerns to any bank tellers was because she had been told by Mr. Mutoni not to tell anyone; and to protect him.
[10] The complainant was not asked by the police to retain the text messages on her phone or obtain her phone records. She said she didn’t know how she would have copied the text messages from her phone for retention. She said she kept them for about a year, and not hearing anything further deleted the texts from her phone.
[11] She said she encountered Mr. Mutoni at a bar at Dow’s Lake a couple of years later. She said she confronted him about ‘using her’. She said he just stared at her. She slapped him in the face. He threw a drink in her face; and she was asked to leave after the bouncer saw her strike Mr. Mutoni.
[12] A chronology of the transactions through the various accounts is as follows:
October 18, 07 – RBC Account opened but never used except for 2 ATM enquiries.
November 2, 2007 – RBC account opened.
November 2, 2007 – Desjardins account opened.
November 8, 07 – $3700 transferred from another account into #0711
November 8, 07– Withdrawal of $3700 from #0711
November 13, 07– Miller cheque deposit of $13,400.13 TD Branch
November 13, 07 – Miller cheque $9,341.54 deposited at Scotia.
November 14, 07– deposit cheque $10,597.30 from Avis to RBC account using PIN for identification at teller counter. (Hold for 5 days put on- of $9,000 because it was a cheque).
November 14, 07– Atlas cheque for $19,723.00 deposited to Desjardins.
November 19, 07– withdrawal ATM $400 LaSalle PQ, Scotia
November 19, 07– withdrawal ATM $100 LaSalle PQ, Scotia
November 20, 07– 22.38 – AVR (RBC account enquiry at ATM MF28 – Chomedy, Quebec.)
November 21, 07 –8.10 attempt to withdraw $40 refused at RBC ATM MA88 (Couche Tard – LaSalle Quebec.)
November 21, 07–13.17 at the RBC branch -changed level 2 to level 4 which increased daily and max weekly withdrawal
November 21, 07 –withdrawal $2000 at teller- Scotia branch.
November 21, 07 –withdrawal $1,000 Branch ATM Scotia branch
November 21, 07– 13.17 partial freeze on the account. TD -because withdrawal had hit the maximum for the day.
November 21, 07 –13.47 – Cash from National Money $2,000 from TD
November 21, 07– 14.16 refused attempt to withdraw 41.50 at 09277-5026760. ATM Fallowfield, Nepean.
November 21, 07– 14.16 Cash from Money Mart $2994.32 (hit maximum for the card for the week) from TD
November 21, 07– 14.20 Card fully blocked – phone code compromised #5480.
November 22, 07– 11.57 AVR enquiry only ATM Couche Tard LaSalle, PQ
November 22, 07 –16.56 withdrawal of $1,000 RBC branch.
November 22, 07– withdrawal $4500 at teller Scotia.
November 22, 07– withdrawal $1,000 Scotia ATM
November 23, 07– 12.21 AVR enquiry at RBC ATM in Strandherd Branch
November 23, 07– 12.32 Cash Withdrawal $4500 at RBC Strandherd Branch, – PIN as id for teller.
November 23, 07– withdrawal $1,000 ATM TD Vanier branch
November 23, 07– 2200 AVR account enquiry at Couche Tard Lasalle, Quebec ATM. Also Video Shots of ATM – showing two males identified by the complainant.
November 23, 07 –Cheque $9341.54 is returned as ‘counterfeit’ - Scotia
November 24, 07 –2.42 pm withdrawal of 1,000 in USD at RBC St Laurent Branch – pin of client- this was posted November 26, 07.
November 25, 07 – complainant went to the Ottawa Police and gave them a statement after a friend told her that the cheques she had deposited were likely fake.
November 26, 07– 10.06 AVR account enquiry at ATM Couche Tard, Lasalle, Quebec.
[13] An agreed statement of fact stipulates that the police never sought a search warrant or production order with respect to Mr. Mutoni.
Defence Evidence
[14] Mr. Mutoni gave evidence. He is 28 years of age, well educated, well spoken, slick and very articulate. He is employed with CUSO International in a communications capacity. His self-assuredness was very evident during his questioning. In cross-examination he gave confident cryptic answers in an unemotional fashion, and refused to be drawn into explanations for his answers. He showed no anxiety at all during questioning, and gave the impression of being arrogant, if not cocky in his manner. His evidence was that he met the complainant in July, 2007, at a nightclub; they exchanged phone numbers, and then engaged in what he described as a purely sexual relationship until early September, 2007. He said they had sex about once a week at her place – and once at his. They communicated only by telephone and only for the purpose of arranging meetings for sex. He denied ever taking her out on a date, or meeting with her and his friends. He ended it by telephoning the complainant and telling her he had a girlfriend that he wanted to be exclusive with. He denied having anything to do with her after that. He said he saw her twice a couple of years later at clubs in Ottawa but only exchanged pleasantries. He denied having a confrontation with her at a bar at Dow’s Lake. He said he knew no one by the name of Jigga; and that while he had an Uncle in Burundi, the Uncle was not in the process of starting up a business.
[15] Mr. Mutoni agreed that the complainant had never said a mean thing to him or about him and volunteered no reason why the complainant would have fabricated her story.
Position of the Defence and the Crown
[16] The defence position is that the complainant was unsure about a good deal of her evidence and what evidence she did give was rife with contradictions. He contended that she was not reliable, and fabricated Mr. Mutoni’s involvement. His contention was that his client’s evidence at the least raised a reasonable doubt.
[17] The Crown theory was that Mr. Mutoni had seduced the complainant into his scheme which he had planned, and that Mr. Mutoni is simply not to be believed in his denials.
Analysis
[18] I found the complainant credible and believable in all respects. I found her to be an honest, decent young woman who had been deceived at a vulnerable time in her life. Her inconsistencies for the most part reflected the time period of 5 years that had passed since the events. I accept that she was under a great deal of emotional pressure while she gave her evidence, and the confrontational style adopted by the defence caused her to feel even less sure of herself. The absence of a proper police investigation meant that there were no confirmatory texts or telephone records – if they existed – to assist her in giving her evidence. She was essentially on her own. There is no doubt that the crime of fraud was committed. There is equally no doubt that she did not benefit from the fraud, and in fact reimbursed the bank many thousands of dollars with a loan and with her family’s assistance.
[19] On the other hand I found Mr. Mutoni to be glib and arrogant in his evidence. He showed no emotion when he described that his relationship with the complainant was purely for his own sexual pleasure. Similarly he showed no apparent interest in the fact that the complainant had been swindled out of thousands of dollars. I simply do not accept his evidence.
[20] However, I am not permitted to weigh the evidence of the complainant against that of the accused. That would improperly place a burden on the accused; and there is no burden on the accused. R. v. W(D) requires that I acquit him if I believe his evidence. I do not believe him. Since I do not believe the accused, I am required to consider if I am left with a reasonable doubt, nonetheless. I am troubled by the absence of any independent confirmatory evidence which surely would have been available or confirmed had a proper police investigation been conducted. It was not. I am therefore left with a reasonable doubt, and must find the accused not guilty.
Honourable Justice Timothy Ray
Released: December 21, 2012
COURT FILE NO.: 10-A11210
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARCELLIN MUTONI
Defendant
REASONS FOR DECISION
Honourable Justice Timothy Ray
Released: December 21, 2012