ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-1944
DATE: 20140115
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 9, 2013
REASONS on MOtion for leave to introduce evidence of bad character of a co-accused
R. SMith j.
[1] Ahmed Adam (herein after referred to as “Mr. Adam”), is co-accused with Ayman Bondok (herein after referred to as “A. Bondok”) and others of fraud and conspiracy to commit fraud. He seeks leave to introduce evidence of bad character of A. Bondok, namely that A. Bondok. has a prior conviction for committing fraud on ING Direct Canada (herein after referred to as “ING”) on Dec 2, 2007, two years before these charges.
[2] Mr. Adam submits that A. Bondok’s prior conviction for fraud on ING is relevant to the live issue of showing that A. Bondok had the capacity to takeover bank accounts and transfer money to his account without Mr. Adam’s involvement. Mr. Adam seeks to introduce evidence of A. Bondok’s prior conviction for fraud to allow the jury to draw a common sense inference that A. Bondok was able to illegally acquire money from ING’s account holders without his assistance.
[3] The Crown argues that the probative value to Mr. Adam’s defence of introducing evidence of A. Bondok’s prior conviction for fraud on ING is very low, and is greatly outweighed by the prejudice to A. Bondok of introducing this bad character evidence.
[4] A. Bondok submits that the probative value of admitting evidence his prior conviction for fraud on ING has no probative value whatsoever to Mr. Adam’s defence to being a party to the fraud on ING as charged for the following reasons:
a) The modus operendi of A. Bondok in his previous conviction for fraud on ING was different from in the current charges. On his previous conviction for fraud there was no evidence that A. Bondok took over a bank account at ING, but rather that he was wilfully blind and used the $55,000 transferred to his bank account which constituted fraud.
b) A. Bondok’s previous conviction for fraud did not involve taking over an ING bank account and therefore does not provide an evidentiary foundation for an inference that A. Bondok had the ability to takeover ING accounts without Mr. Adam’s assistance.
c) The Crown does not seek to adduce evidence of A. Bondok’s bad character. The balancing of probative value vs. prejudice is different when a co-accused rather than the Crown seeks to introduce evidence of a co-accused’s bad character. In R. v. Seaboyer, 1991 76 (SCC), [1991] S.C.J. No. 62 the Supreme Court stated that the power to exclude relevant evidence by a co-accused is narrower and it is admissible unless its prejudicial effect substantially outweighs its probative value.
d) Mr. Adam told the police that he did not know A. Bondok and therefore could not have known about his prior conviction.
e) Mr. Adam has already established in cross-examination of another witness that frauds had occurred at ING before Mr. Adam commenced work at ING.
[5] In R. v. Pollock, 2004 16082 (ON CA), [2004] 188 O.A.C. 37, 23 C.R. (6th) 98, Rosenberg J.A. stated as follows at para 123: “…There must be some legitimate and reasonable nexus between the proffered evidence and the inference sought to be drawn by the accused.”
[6] I agree with submissions by Counsel for A. Bondok and the Crown that evidence of A. Bondok’s prior conviction for fraud on ING in 2007 is of very limited probative value. On the previous conviction A. Bondok was wilfully blind and used the $55,000 that had been transferred to his bank account without inquiry. This evidence a) has a very low probative value, if any, to Mr. Adam’s ability to make full answer and defence to these charges; b) has a very low probative value to support an inference that A. Bondok was capable of defrauding ING account holders by taking over their bank accounts, without Mr. Adam’s assistance; and c) the method A. Bondok used when committing the previous fraud is different from the facts as alleged in these charges as it did not involve access to passwords and PIN’s; and d) I find that the prejudicial effect of this evidence against A. Bondok substantially outweighs the limited probative value to Mr. Adam’s defence, applying the test in R. v. Seaboyer and R. v. Pollock.
Disposition
[7] For the above reasons Mr. Adam’s motion to introduce evidence of his co-accused, Mr. A. Bondok’s previous conviction for fraud on ING, is dismissed.
R. Smith J.
Given Orally: October 9, 2013
Release: January 15, 2014
COURT FILE NO.: CR-12-1944
DATE: 20140115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
AHMED ADAM, MAX ALEXIS, AYMAN BONDOK AND MOHAMED BONDOK
Defendants
reasons on leave to introduce evidence of bad character OF A CO-ACCUSED
R. Smith J.
Given Orally: October 9, 2013
Released: January 15, 2014