ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-1944
DATE: 2014/01/15
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
AHMED ADAM, MAX ALEXIS, AYMAN BONDOK AND MOHAMED BONDOK
Defendants
John Semenoff, for the Crown
Elena M. Davies, for the Defendant Ahmed Adam
Joseph Addelman, for the Defendant Max Alexis
Michael Spratt, for the Defendant Ayman Bondok
Stuart Konyer, for the Defendant Mohamed Bondok
HEARD: October 21, 2013
REASONS ON DIRECTED VERDICT MOTIONS
R. Smith J.
Count #3 Ahmed Adam
[1] Ahmed Adam (herein after referred to as “Mr. Adam”) has brought a motion for a directed verdict of acquittal on Count #3 which alleges that between September 1, 2009 and November 30, 2009 he conspired with Ayman Bondok (herein after referred to as “A. Bondok”) to commit fraud by using personal information that Mr. Adam obtained through work to take over bank accounts and steal money from ING Direct Canada (herein after referred to as “ING”) customers.
Requirements for Conspiracy
[2] A criminal conspiracy is an agreement between two or more persons to commit an unlawful act. It involves an intention to agree, the completion of an agreement, and a common design that must be proved as against at least two persons.
[3] In the case of R. v. H.A., 2005 32566 (ON CA), [2005] O.J. No. 3777 at para 46 the Supreme Court stated as follows:
…The actus reus of the crime of conspiracy lies in the formation of the agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal... [Emphasis added]
[4] In the case of United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, the mens rea of the offence requires that the agreement must be made with the intention that the mutual criminal objective be committed. It does not require that all conspirators commit, or intend to personally commit, the mutual criminal objective. It is sufficient that the intention is that one or more of the conspirators will commit the offence.
[5] A conspiracy may be proved by direct or circumstantial evidence and may be established by inference from the conduct of the parties. Because of the nature of a conspiracy it will most often be proven by drawing inference from circumstantial evidence and the following criteria apply:
(a) In R. v. H.A. at para 47, D.H. Doherty J.A. stated as follows:
It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy: see R. v. Lamontagne (1999), 1999 13463 (QC CA), 142 C.C.C. (3d) 561 at 575-76 (Que. C.A.); R. v. Cotroni, supra, at pp. 17-8. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.
(b) Recklessness is not sufficient evidence of mens rea for a conspiracy conviction; and
(c) Evidence of aiding and abetting a principal by taking steps to further the unlawful object of the conspiracy was not sufficient to establish the offence of conspiracy, rather it was restricted to those who aided in the formation of the agreement that had the unlawful object.
[6] Mr. Adam submits that the Crown has not introduced any evidence from which the jury could reasonably infer that Mr. Adam and A. Bondok a) formed an agreement to act together b) with the intention to use personal information obtained by Mr. Adam through work to take over bank accounts and steal money from ING customers.
[7] The Crown submits the contrary namely that a jury could reasonably infer that Mr. Adam and A. Bondok a) formed an agreement to act together b) with the intention to use personal information obtained by Mr. Adam through work to take over bank accounts and steal money from ING customers.
[8] The following evidence must be considered to determine if there was evidence of knowledge of the fraud and acts in furtherance of the fraud from which an agreement could be inferred:
i. Mr. Adam obtained private confidential information from two ING customers, Mr. Pijselman and Mr. Henri.
ii. There was no legitimate purpose in Mr. Adam acquiring Mr. Henri’s verbal password and Mr. Pijselman’s PIN number. Access to the PIN and password of customers are what make bank fraud possible.
iii. Evidence that Mr. Adam made a further inquiry on September 20, 2009 and accessed Mr. Pijselman’s account to check why money had not flowed yet, is evidence which could be found to be in furtherance of the fraud and constitute evidence of Mr. Adam’s knowledge of the ongoing fraud.
iv. Mr. Adam also had knowledge of personal details of both Mr. Pijselman and Mr. Henri which was necessary to get access to the victims’ bank accounts.
v. There was evidence that the voice on the phone, impersonating Mr. Pijselman, was similar to that of A. Bondok.
vi. Several phone calls accessing Mr. Pijselman’s account were made from A. Bondok’s phone number at his home address. These were made in close proximity to the time that Mr. Adam obtained Mr. Pijselman’s PIN number.
vii. In January of 2010, A. Bondok advised the police that he was a good friend of Mr. Adam, which is evidence against A. Bondok but not against Mr. Adam. However, there is the fact that A. Bondok was driving Mr. Adam’s car on two occasions. The car was registered in Mr. Adam’s name and he retrieved it when it was impounded at the police station.
viii. Money from the fraud on Mr. Henri flowed to A. Bondok’s wife in Egypt, through his brother M. Bondok.
ix. There is also evidence that Mr. Adam was aware of how Mr. Pijselman’s PIN was used because of his call to check on the problem of why the funds were not transferred on September 20, 2009.
[9] Based on the above evidence, I find that there is some evidence on which a jury could reasonably infer that Mr. Adam and A. Bondok entered into an agreement to defraud ING customers of their money by using passwords and PIN’s obtained by Mr. Adam and that this agreement was made with the intention to carry out the fraud based on the above evidence.
[10] The motion for a directed verdict on Court #3 is dismissed.
Count #7 Ayman Bondok
[11] The same legal test for conspiracy and the same evidence referred to above with regard to Count #3 applies to Count #7. For the same reasons as given above on Count #3 the motion for a directed verdict on Count #7 is dismissed.
Count #4 Max Alexis
[12] Max Alexis (herein after referred to as “Mr. Alexis”) submits that the Crown has not introduced any evidence from which a jury could reasonably infer that he formed an agreement with persons unknown, to commit fraud by assisting in the takeover of Mr. Henri’s bank account and the theft of his money.
[13] The Crown submits that the following evidence would allow a jury to reasonably infer that Mr. Alexis formed an agreement with another person or persons to commit fraud by assisting in the takeover of Mr. Henri’s ING account and stealing his money.
a) Mr. Alexis contacted Yassine Filali (herein after referred to as to “Mr. Filali”) to solicit his involvement to launder money for 10% of the amount laundered before Mr. Henri’s money was transferred. This could support an inference that Mr. Alexis had knowledge of the plan to transfer Mr. Henri’s funds to Mr. Filali’s account.
b) Mr. Alexis obtained a copy of Mr. Filali’s blank cheque which was used to link Mr. Filali’s account with Mr. Henri’s ING account. This is evidence of his participation in the takeover of Mr. Henri’s account and theft of Mr. Henri’s money.
c) There was evidence that Mr. Alexis collected the cash withdrawn by Mr. Filali from Mr. Henri’s funds which is evidence that Mr. Alexis acted in furtherance of the scheme with knowledge of the agreement to defraud Mr. Henri and steal his money.
[14] The actions of Mr. Alexis of assisting or aiding in the commission of the fraud on Mr. Henri by recruiting Mr. Filali and collecting the cash Mr. Filali gave him, cannot be used as evidence of aiding to commit the offence of conspiracy.
[15] To be a party to an offence of conspiracy by assisting or aiding, the accused must encourage or assist in the initial formation of the agreement or encourage or assist new members to join a pre-existing agreement.
[16] However, the above evidence could support a reasonable inference that Mr. Alexis entered into an agreement with others as a principal to defraud Mr. Henri of his money in his ING account. This evidence indicates that he had knowledge of the upcoming takeover of and fraud on Mr. Henri’s account because he contacted Mr. Filali and obtained a copy of his blank cheque before the funds were transferred from Mr. Henri’s account, and he committed acts in furtherance of the scheme as set out above.
[17] The motion for a directed verdict on Count #4 by Mr. Alexis is dismissed for the above reasons.
Count #2 Ayman Bondok
[18] A. Bondok has brought a motion for a directed verdict alleging that there is no evidence on which a reasonably instructed jury could convict A. Bondok of being a party to defrauding Mr. Henri of the money from his ING account.
[19] A. Bondok argues that there is no evidence that A. Bondok acted with deceit falsehood or used other fraudulent means to cause Mr. Henri’s funds to be transferred from his account.
[20] The Crown submits that evidence connecting A. Bondok to the fraud on Mr. Henri’s bank account is as follows:
a) $6,800 of Mr. Henri’s funds was transferred to an individual who was A. Bondok’s spouse in Egypt. However there is no evidence of an indirect benefit to A. Bondok.
b) The transfer to A. Bondok’s spouse was made by Mohamed Bondok, who is A. Bondok’s brother and who received $7,000 and a $12,500 bank draft from Mr. Henri’s money. Again, this evidence does not implicate A. Bondok.
c) On Count #7 I found that there was evidence on which a jury could reasonably infer that A. Bondok and Mr. Adam conspired to takeover ING customers’ accounts using information obtained by Mr. Adam. However, there was evidence of A. Bondok’s involvement in Count #7 related to the fraud on Mr. Pijselman’s account, including A. Bondok’s evidence that he was a good friend of Mr. Adam and that he was found driving Mr. Adam’s vehicle on two occasions.
d) There is a similarity in the hand writing on the cheques in both the fraud on Mr. Pijselman and Mr. Henri but the handwriting has not been linked to A. Bondok.
[21] Considering the above submissions I find that there is not sufficient evidence linking A. Bondok to the fraud on Mr. Henri’s account for a reasonably instructed jury to convict A. Bondok of fraud as set out in Count #2. As a result, I order that an acquittal be entered on Count #2 against A. Bondok.
Count #2 Mohamed Bondok
[22] Mohamed Bondok (“M. Bondok”) has brought a motion for a directed verdict of acquittal on Count #2 namely the allegation of fraud regarding Mr. Henri’s ING account on the grounds that there is no evidence that M. Bondok acted with deceit, falsehood or other fraudulent means to defraud Mr. Henri of money in his ING account. Mr. Bondok acknowledges that there is evidence that he had possession of proceeds of crime and committed money laundering because he received $12,500 bank draft from Mr. Henri’s funds plus $7,000 through Mr. Alexis’ company, ACM.
[23] The Crown relies on the Court of Appeal decision in R. v. H.A., where D.H. Doherty J.A. held that the receipt of $55,000 by A. Bondok into his bank account and the use of those funds constituted wilful blindness and was sufficiently dishonest conduct to justify a conviction for fraud.
[24] In this case, M. Bondok received $12,500 from M. Henri’s funds by a bank draft and further $7,000 through the ACM company, where the funds came from Mr. Henri’s bank account. I find that the direct receipt of $12,500 and the $7,000 through Mr. Alexis’ company ACM of Mr. Henri’s funds is some evidence on which a jury could reasonably infer that M. Bondok acted with other fraudulent means and could reasonably be found guilty of fraud.
[25] The motion for a directed verdict by M. Bondok on Count #2 is dismissed.
R. Smith J.
Given Orally: October 21, 2013
Released: January 15, 2014
COURT FILE NO.: CR-12-1944
DATE: 2014/01/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
AHMED ADAM, MAX ALEXIS, AYMAN BONDOK AND MOHAMED BONDOK
Defendants
REASONS ON DIRECTED VERDICT MOTIONS
R. Smith J.
Given Orally: October 21, 2013
Released: January 15, 2014