ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-1944
DATE: 2013/07/04
BETWEEN:
HER MAJESTY THE QUEEN
Respondent on Motion
– and –
AYMAN BONDOK
Accused/Applicant on Motion
John Semenoff, for the Crown
Michael Spratt for the Accused/Applicant
HEARD: June 27, 2013
REASONS FOR DECISION ON SEVERANCE APPLICATION
R. SMith j.
Overview
[1] Ayman Bondok (“Bondok”) has brought an application for an order for severance from the co-accuseds in this indictment pursuant to section 591(3)(b) of the Criminal Code of Canada. The accused are charged with conspiracy to commit fraud by using personal information obtained by Mr. Adam to take over bank accounts and steal money from ING customers, possession of proceeds of crime, and the transferring of possession of proceeds of crime. Four other individuals, together with the accused, are jointly charged on an 11-count indictment with various fraud-related offences in relation to ING, which arose out of the same series of events.
[2] A co-accused, Mr. Adam, has become aware that the applicant has been recently convicted of defrauding ING. The Crown does not intend to introduce evidence of the applicant’s previous fraud on ING. However Mr. Adam may seek to have this evidence of the applicant’s prior discreditable conduct introduced in the upcoming jury trial. The applicant submits that this would be highly prejudicial to him in a jury trial.
[3] The Crown submits that the proposed severance is not in the interests of justice and submits that the application for severance is speculative and premature. The Crown further submits that any prejudice to the applicant from the introduction of bad character evidence can be overcome by a mid-trial and final charge to the jury.
Background Facts
[4] The applicant is jointly charged with Ahmed Adam, Max Alexis, Mohamed Bondok and Carmina C. Montemurro in relation to a fraud committed on ING and some of its customers.
[5] In September, 2009 Mr. Adam was working as a customer service representative for the ING call center, where he had access to personal information of ING clients. Mr. Adam received a call from Mr. Pijselman, who unwittingly gave Mr. Adam his personal identification number for his bank account with ING.
[6] Between September 2 and 16 of 2009 a number of telephone status checks were made on Mr. Pijselman’s ING accounts. Eight of the telephone calls originated from a residential telephone number alleged to have belonged to the applicant.
[7] On September 21 a check from a Royal Bank account was faxed to ING with a request for a link to be made with Mr. Pijselman’s ING account. The Royal Bank account belonged to Mr. Mario Giannuzzi. On September 24 $497,000 was transferred from Mr. Pijselman’s account to the Royal Bank.
[8] On October 27, 2009 an individual impersonating Mr. Henri called ING to establish a link to a CIBC bank account. The individual used the voice password Mr. Adam had helped Mr. Henri create on September 22, 2009.
[9] On November 2, 2009 a call was made to ING requesting the transfer of $80,000 to the CIBC account and the transfer of funds was completed. The CIBC account was in the name of Yassine Filali of St. Laurent, Québec.
[10] Mr. Filali wrote several bank drafts and cheques disbursing the funds that were transferred into his account. One of these bank drafts was made out to Mr. Mohammed Bondok (the applicant’s brother). Mr. Mohammed Bondok is alleged to have sent $6,400 to an Egyptian bank account in the name of Ms. Amera Shafaiy. The Crown alleges that Ms. Shafaiy is the applicant’s spouse.
Analysis
[11] There is a strong presumption in law that favours joint trials where multiple accuseds face charges arising out of a common enterprise. This is especially true when one or more of the accused employees a “cut throat” defence.
[12] In R. v. Crawford; R. v. Creighton, (1995) 1995 138 (SCC), S.C.J. No. 30 at paras. 30-31, Sopinka J. set out the following principles related to joint trials and severance:
There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:
There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about in incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity. In view of this, in all but exceptional cases, a joint trial will be resorted to, despite the double bind inevitably involved.
Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused.
[13] In R. v. Pollock, [2004] O.J. (Ont. C.A.) 2652 at para. 100, Rosenberg J. cited Binnie J.’s statement in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, summarizing some of the dangers of relying upon evidence of the bad character, propensity or disposition of an accused:
The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accused is called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible …
The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.
[14] The applicant relies on the decision in R. v. Guimond , (1979) 1979 204 (SCC), 8 C.R. (3d) 185, which states that the strong policy reasons for a joint trial are “somewhat muted” where there is no real risk of inconsistent verdicts and where there is an overwhelming case against one accused and a relatively weak case against the co-accused. The applicant in this case is charged with engaging in a joint enterprise or a conspiracy between himself and Mr. Adam. The evidence in support of the charges against both the applicant and Mr. Adam is circumstantial evidence. The theory of the Crown’s case is that both individuals played a key part in the frauds; Mr. Adam received the confidential passwords and the applicant used the confidential passwords to transfer monies, some of which ultimately flowed to his benefit through his relations.
Premature and speculative
[15] The Crown submits that it is not yet clear whether counsel for the co-accused, Mr. Adam, or counsel for any of the other co-accused will seek to tender propensity evidence with respect to the applicant or any of the other co-accuseds. All of the other co-accuseds also have criminal records. It is acknowledged that counsel for Mr. Adam has questioned witnesses at the preliminary hearing with regards to the applicant’s past record for fraud and has obtained disclosure relating to his previous conviction for fraud.
[16] I agree with the Crown’s submission that it is not yet clear whether Mr. Adam will seek to admit this evidence, how counsel will seek to admit this evidence, and whether the court will allow counsel to admit this evidence at the trial.
[17] In R. v. Pollock at para. 19, the Court of Appeal held that before the bad character evidence of a co-accused can go before the jury, the court would have to be satisfied that the evidence is necessary for the accused to make full answer and defence. The applicant argues in his factum that adducing the bad character evidence of the applicant is not necessary for Mr. Adam to make full answer and defence, as it does little to detract from the evidence implicating Mr. Adam. It is not necessary for me to rule at this time on whether the evidence of the applicant’s bad character can be presented to the jury.
[18] Counsel for the applicant submitted that he was required to bring the application for severance in a timely manner. I agree and find that the applicant has brought his severance application in a timely manner; however I also find that the application is premature and somewhat speculative as Mr. Adam may never seek to introduce evidence of the applicant’s prior fraud conviction related to ING.
Disposition
[19] For the above reasons including that the application is premature and speculative, Mr. Bondock’s application for severance is denied.
R. Smith J.
Released: July 4, 2013
COURT FILE NO.: 12-1944
DATE: 2013/07/04
HER MAJESTY THE QUEEN
Respondent on Motion
– and –
AYMAN BONDOK
Accused/Applicant on Motion
REASONS FOR DECISION
ON SEVERANCE APPLICATION
R. Smith J.
Released: July 4, 2013