CITATION: R. v. Osifo, 2016 ONSC 915
COURT FILE NO.: CR-15-119
DATE: 20160204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Mr. Peter Leger, for the Crown
- and -
Kelly Osifo
Mr. Adam Newman, for the Accused
Accused
HEARD: February 2, 3 and 4, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] Is Mr. Kelly Osifo the mastermind behind a series of fraudulent transactions perpetrated against various banks in Chatsworth, Owen Sound and Durham, Ontario?
[2] According to the Crown’s star witness, Candace Tebow, he is. She would be expected to know as she, in 2015, pleaded guilty to and was sentenced on several fraud-related criminal charges, some of which allegedly involved the accused.
[3] It all started when Ms. Tebow met Mr. Osifo at Sugar-Daddies, a night club down south. That was in January 2013. It all ended with Ms. Tebow being busted for fraud by the police in Bracebridge, in the company of someone else (not the accused), in October 2013.
[4] Ms. Tebow is a convicted criminal. She points the finger at the accused as being the directing mind behind at least some of the frauds that she committed. Shortly after they first met, he presented her with a “business opportunity”. It was not a legitimate one. She accepted his proposal. The idea was to open up bank accounts using false identification, deposit stolen fraudulent cheques and then try to withdraw funds. It worked for a while, although not that successfully.
[5] This Judge-alone trial was heard in Owen Sound on February 2, 3 and 4, 2016. The evidentiary portion of the trial was completed in just 1.5 days. Numerous documents, including copies of the forged identification and copies of the stolen fraudulent cheques used by Ms. Tebow when she attended at the various banks, as well as images from cameras at the banks showing Ms. Tebow in attendance on the dates in question, were entered on consent of the Defence, for the truth of their contents, without the need for any testimony. Admissions were made that streamlined the trial and focussed the inquiry on what is really the issue: identity.
[6] Evidently, Mr. Newman does not believe in the shot-gun approach. For that, I am grateful.
[7] The prosecution called four witnesses at trial, three of them very brief. The Defence did not present any evidence.
II. The Charges, Their Essential Elements and the Basic Legal Principles
The Charges and the Facts that are Not in Issue
[8] Kelly Osifo is charged with nine counts of uttering a forged document. The formal charges read:
COUNT 1 – HER MAJESTY THE QUEEN PRESENTS THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the Township of Chatsworth, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: an Ontario Driver’s Licence C5105-17108-15330 in the name of Jessica Campbell, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
COUNT 2 – AND FURTHER, THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the Township of Chatsworth, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: an Ontario Birth Certificate 60050740-001 in the name of Jessica Campbell, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
[9] Regarding counts 1 and 2, there is no dispute that Ms. Tebow was at the Bank of Montreal in Chatsworth on March 5, 2013. Further, there is no dispute that she used the two documents in question to open an account at that bank on that date. And there is no dispute that the said two documents were forgeries, something known to Ms. Tebow at the time. The question is whether Mr. Osifo had anything to do with it. Ms. Tebow alleges that the scams were his idea; he gave her the forged documents; and he drove her to the bank.
COUNT 3 – AND FURTHER, THAT KELLY OSIFO, on or about the 6th day of March, 2013, at the Township of Chatsworth, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: cheque #105119, issued by Wesbell Technologies of Mississauga, Ontario, in the amount of $44,398.03, made payable to ‘Never Enough Desserts’, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
[10] Regarding count 3, there is no dispute that Ms. Tebow was at the Bank of Montreal in Chatsworth on March 6, 2013. Further, there is no dispute that she used the document in question to make a deposit at that bank on that date. And there is no dispute that the said document was a forgery, something known to Ms. Tebow at the time. The question is whether Mr. Osifo was behind it. According to Ms. Tebow, he gave her the forged document, told her what to do and drove her to the bank.
COUNT 6 – AND FURTHER, THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the City of Owen Sound, Central West Region, did knowingly cause Candace Tebow to use a forged document to wit, an Ontario Driver’s Licence C5105-17108-15330 in the name of Jessica Campbell, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
COUNT 7 – AND FURTHER, THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the City of Owen Sound, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit; an Ontario Birth Certificate 60050740-001 in the name of Jessica Campbell, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
[11] Regarding counts 6 and 7, there is no dispute that Ms. Tebow was at the Toronto-Dominion Bank in Owen Sound on March 5, 2013. Further, there is no dispute that she used the two documents in question to open an account at that bank on that date, or at least that she attempted to do so. And there is no dispute that the said two documents were forgeries, something known to Ms. Tebow at the time. Again, the issue is whether the accused had anything to do with it. Ms. Tebow alleges that Mr. Osifo gave her the forged documents, told her what to do and drove her to the bank.
COUNT 9 – AND FURTHER, THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the Municipality of West Grey, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: an Ontario Driver’s Licence C5105-17108-15330 in the name of Jessica Campbell, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
COUNT 10 – AND FURTHER, THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the Municipality of West Grey, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: an Ontario Birth Certificate 60050740-001 in the name of Jessica Campbell, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
[12] Regarding counts 9 and 10, there is no dispute that Ms. Tebow was at the Royal Bank of Canada in Durham on March 5, 2013. Further, there is no dispute that she used the two documents in question to open an account at that bank on that date. And there is no dispute that the said two documents were forgeries, something known to Ms. Tebow at the time. The question, once again, is what involvement, if any, the accused had. According to Ms. Tebow, it was all his idea; he drove her to the bank; and he gave her the forged documents
COUNT 11 – AND FURTHER, THAT KELLY OSIFO, on or about the 6th day of March, 2013, at the Municipality of West Grey, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: cheque #008601 in the amount of $6,479.55, issued by Centerfire Contracting Ltd., of Stony Mountain, Alberta and made payable to “Jessica Campbell”, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
COUNT 12 – AND FURTHER, THAT KELLY OSIFO, on or about the 7th day of March, 2013, at the Municipality of West Grey, Central West Region, did knowingly cause Candace Tebow to use a forged document, to wit: cheque #918486 in the amount of $14,547.60 issued by Vancouver Coastal Health of Burnaby, British Columbia, and made payable to “Jessica Campbell”, as if it were genuine, contrary to section 368(1)(a) of the Criminal Code of Canada.
[13] Regarding counts 11 and 12, there is no dispute that Ms. Tebow was at the Royal Bank of Canada in Durham on March 6 and 7, 2013. Further, there is no dispute that she used the two documents in question to make deposits at that bank on those dates. And there is no dispute that the said documents were forgeries, something known to Ms. Tebow at the time. The issue is whether Mr. Osifo was behind it. Ms. Tebow alleges that he gave her the forged cheques, told her to make the deposits and drove her to the bank.
[14] For me to find Mr. Osifo guilty of uttering a forged document, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that the documents in question were forged (there is no dispute about that);
ii. that Mr. Osifo knew or believed that the documents in question were forged;
iii. that Mr. Osifo dealt with each of the above-noted items (whether as a principal or as a party); and
iv. that he represented that each of the above-noted items was genuine (whether as a principal or as a party).
[15] If Crown counsel has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of uttering a forged document.
[16] If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find Kelly Osifo guilty of uttering a forged document.
[17] Mr. Osifo is also charged with three counts of possession of property obtained by crime. The formal charges read:
COUNT 4 – AND FURTHER, THAT KELLY OSIFO, on or about the 6th day of March, 2013, at the Township of Chatsworth, Central West Region, did have in his possession, property, to wit: a stolen cheque #105119, issued by Wesbell Technologies of Mississauga, Ontario , in the amount of $44,398.03, of a value exceeding five thousand dollars, knowing that the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code of Canada.
COUNT 13 – AND FURTHER, THAT KELLY OSIFO, on or about the 6th day of March, 2013, at the Municipality of West Grey, Central West Region, did have in his possession, property, to wit: a stolen cheque #008601 in the amount of $6,479.55, issued by Centerfire Contracting Ltd., of Stony Mountain, Alberta, of a value exceeding five thousand dollars, knowing that the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code of Canada.
COUNT 14 – AND FURTHER, THAT KELLY OSIFO, on or about the 7th day of March, 2013, at the Municipality of West Grey, Central West Region, did have in his possession, property, to wit: a stolen cheque #918486 in the amount of $14,547.60, issued by Vancouver Coastal Health of Burnaby, British Columbia, of a value exceeding five thousand dollars, knowing that the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code of Canada.
[18] Regarding counts 4, 13 and 14, there is no dispute that the cheques in question were stolen. Further, there is no dispute about the cheques’ values and who they were issued by. And there is no dispute that the said cheques were altered to make them payable to Jessica Campbell, the alias used by Ms. Tebow in the course of these scams. Ms. Tebow certainly had possession of the said cheques on the dates in question. The issue is whether the accused had the cheques and gave them to Ms. Tebow in order to effect the frauds, which is what Ms. Tebow testified to at trial.
[19] For me to find Mr. Osifo guilty of possession of property obtained by crime, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Osifo was in possession of the property in question (this is the key issue on counts 4, 13 and 14);
ii. that the said property was obtained by crime;
iii. that Mr. Osifo knew that the property had been obtained by crime; and
iv. that the value of the property exceeded $5000.00 (there is no dispute about that).
[20] If Crown counsel has notsatisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused notguilty of possession of property obtained by crime.
[21] If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find Kelly Osifo guilty of possession of property obtained by crime.
[22] Finally, Mr. Osifo is charged with three counts of attempted fraud. The formal charges read:
COUNT 5 – AND FURTHER, THAT KELLY OSIFO, on or about the 6th day of March, 2013, at the Township of Chatsworth, Central West Region, did attempt by deceit, falsehood or other fraudulent means to defraud the Bank of Montreal of a value exceeding five thousand dollars, of $44,398.03, by depositing a stolen fraudulent cheque into a bank account, contrary to section 380(1) of the Criminal Code of Canada.
[23] Regarding count 5, there is no dispute that Ms. Tebow deposited the said stolen cheque into an account at the Bank of Montreal in Chatsworth on the date in question. There is no dispute that it was a stolen fraudulent cheque. And there is no dispute that Ms. Tebow attempted to defraud that bank of a value exceeding $5000.00. The question is whether the accused had anything to do with it. According to Ms. Tebow, he did. She testified that it was his idea; he gave her the cheque; and he drove her to the bank.
COUNT 8 – AND FURTHER, THAT KELLY OSIFO, on or about the 5th day of March, 2013, at the City of Owen Sound, Central West Region, did attempt by deceit, falsehood or other fraudulent means to defraud the TD Canada Trust Bank of a value exceeding five thousand dollars, by opening a bank account using falsified identification, contrary to section 380(1) of the Criminal Code of Canada.
[24] Regarding count 8, there is no dispute that Ms. Tebow used false identification in the name of Jessica Campbell to open an account at the Toronto-Dominion Bank in Owen Sound on the date in question, or at least that she attempted to do so, thereby attempting to defraud that bank. The question is whether the accused had anything to do with it. According to Ms. Tebow, he did. She testified that it was all his idea; he gave her the false identification; and he drove her to the bank.
COUNT 15 – AND FURTHER, THAT KELLY OSIFO, between the 6th day of March, 2013 and the 7th day of March, 2013, at the Municipality of West Grey, Central West Region, and elsewhere in the Province of Ontario, did attempt by deceit, falsehood or other fraudulent means defraud the Royal Bank of Canada of $21,027.15, a value exceeding five thousand dollars, by opening a bank account using falsified identification and depositing stolen cheques, contrary to section 380(1) of the Criminal Code of Canada.
[25] Regarding count 15, there is no dispute that Ms. Tebow, on the dates in question, attempted to defraud the Royal Bank of Canada of $21,027.15 by opening an account using false identification in the name of Jessica Campbell and by depositing stolen cheques. The question is whether the accused had anything to do with it. According to Ms. Tebow, he did. She testified that it was all his idea; her gave her the false identification and the stolen fraudulent cheques; and he drove her to the bank.
[26] For me to find Mr. Osifo guilty of fraud or attempted fraud, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Osifo, whether as a principal or as a party, deprived or attempted to deprive the Bank of Montreal, the TD Canada Trust Bank and the Royal Bank of Canada of something of value;
ii. that Mr. Osifo’s deceit, falsehood or other fraudulent means caused or attempted to cause the deprivation;
iii. that he intended to defraud the Bank of Montreal, the TD Canada Trust Bank and the Royal Bank of Canada; and
iv. that the value of the money exceeded $5,000.00 (that is not in dispute).
[27] If Crown counsel has not satisfied me beyond a reasonable doubt of each of those essential elements, I must find the accused not guilty of fraud or attempted fraud.
[28] If the Crown has satisfied me beyond a reasonable doubt of each of those essential elements, I must find Mr. Osifo guilty of fraud or attempted fraud.
The Presumption of Innocence
[29] There is no burden of proof on Mr. Osifo. That rests entirely with the prosecution.
III. The Positions of the Crown and the Defence
The Crown
[30] The theory of the Crown is that it was Mr. Osifo who provided to Ms. Tebow the plan, the documents, the cover story and the transportation to effect the frauds in Grey County.
[31] The prosecution submits that Ms. Tebow was a candid witness. Her evidence was not bought by either the police or the Crown. She did not reveal to the police the name of the accused earlier than she did because she was scarred. She is not a sophisticated person who is capable of having done what she did without Mr. Osifo’s involvement.
[32] The Crown argues that, although Ms. Tebow’s evidence attracts Vetrovec concerns and does not, on its own, amount to proof beyond a reasonable doubt, it is confirmed by other independent evidence adduced at trial.
The Defence
[33] The Defence submits that Ms. Tebow is not a credible or reliable witness, and further, her evidence is not corroborated in any material way.
[34] In short, the totality of the evidence at trial may make the Court suspicious but falls far short of proof beyond a reasonable doubt.
IV. Analysis
The Issue
[35] The only issue to be decided is whether Mr. Osifo had anything to do with these scams in Grey County such that he may be found guilty of some or all of the charges, whether as a principal or as a party.
Assessment of the Evidence at Trial
[36] The evidence that Mr. Osifo drove Ms. Tebow to Grey County, and specifically to the banks in Owen Sound, Chatsworth and Durham, and further that he masterminded the frauds in Grey County, and further that he gave the fraudulent documents to Ms. Tebow and instructed her what to do, and further that they were together in the motor vehicle before Ms. Tebow is shown in the images contained in Exhibit 1 for the transactions in Guelph and Fergus, comes almost exclusively from the testimony at trial of Ms. Tebow.
[37] I have some concerns about the credibility and reliability of Ms. Tebow’s evidence, for the following reasons.
[38] First, throughout her entire lengthy first interview with the police in October 2013 (151 pages of transcript), she never once revealed that the driver to Grey County was the accused.
[39] Second, throughout the vast majority of her second lengthy interview with the police in November 2013 (close to 100 pages of transcript), she never revealed that the driver to Grey County was the accused. In the final stages of that second police interview, she finally agreed that the driver was the person shown to her in a photo – Kelly Osifo.
[40] Third, the extensive nature of her fraudulent conduct in 2013 causes me to exercise some degree of caution in accepting her almost entirely uncorroborated evidence against Mr. Osifo. Ms. Tebow embarked upon a trek across Ontario, spanning several months in 2013, pulling the wool over the eyes of numerous bank employees in several towns and cities. She was practicing deceit like a professional. If this was a jury trial, it is likely that a relatively strong Vetrovec caution would have to be given to the triers of fact. The Crown fairly concedes that point.
[41] The confirmatory evidence must be capable of restoring my faith in the relevant aspects of Ms. Tebow’s evidence. Before finding Mr. Osifo guilty on the strength of Ms. Tebow’s evidence, I must be comforted that she is telling the truth when she alleges that Mr. Osifo was the one behind the Grey County frauds. R. v. Khela, 2009 SCC 4, [2009] S.C.J. No. 4, at paragraph 43 (S.C.C.).
[42] Fourth, the evidence of Ms. Tebow has been inconsistent on some material points. For example, she testified at trial that she is sure that Sammy (also known as Jay) gave her the fraudulent documents for the scam in Campbellford but not sure about Bracebridge, while she clearly told the police in October 2013 that he gave her the documents for those “two” locations. As another example, she testified at the preliminary inquiry that Sammy could have driven her to more than two places (she could not remember for sure), yet at trial she testified that Sammy definitely drove her to only Campbellford and Bracebridge. As another example, she testified at the preliminary inquiry that she always gave to the driver the bank access card immediately after exiting the bank, yet she admitted at trial that she still had the bank access card in Hamilton hours after the last bank visit on March 5, 2013. In addition, during her police interview in October 2013, she first stated that she never received any financial benefit from the frauds; then she said “maybe once”; and at trial she admitted to receiving money a few times. As another example, within a very short period of time in cross-examination at trial, she went from saying that she is not sure whether it was the same motor vehicle that was driven up to Grey County on all three dates in March 2013 to saying that it was the same vehicle on March 5, 6 and 7, 2013. Even more important, Ms. Tebow was confronted in cross-examination at trial with her testimony at page 125 of the preliminary inquiry transcript, at about line 10, where she said “[a]t the time of the first interview, I didn’t remember”. I am satisfied that the said reference was clearly to her not remembering who drove her to Grey County. But Ms. Tebow initially refused to admit that obvious fact – she denied that she was referring to the identity of the driver. There is no doubt that Ms. Tebow was referring to that very thing, and her testimony at the preliminary inquiry on that point is directly contrary to her trial testimony that she always knew (even during the first interview with the police) who the driver was but simply chose not to reveal the name of the accused, Mr. Osifo. Finally, Ms. Tebow testified at trial, unequivocally, that she was sure who drove her to Grey County, Mr. Osifo, before Detective Paddon supplied her with information during the second interview in November 2013 which suggested that it was Mr. Osifo, yet she testified to the exact opposite at lines 5-10 on page 126 of the preliminary inquiry transcript.
[43] On the very last point, the Crown submits that Ms. Tebow’s evidence was not inconsistent because she never testified at trial that she was, before the police supplied her with certain information in the late stages of her second interview in November 2013, “sure” that it was Mr. Osifo who drove her to Grey County. I disagree. She clearly stated that in answer to one of my questions of her during the cross-examination at trial by Mr. Newman.
[44] I do not necessarily agree with Mr. Newman that Detective Paddon’s questioning of Ms. Tebow during the November 2013 interview is as offensive as the Defence has characterized it to be. My concerns lie with the credibility and reliability of Ms. Tebow.
[45] Fifth and finally, it is clear to me that Ms. Tebow was not completely forthright with the police, despite her stating at trial that she never lied to Detective Paddon. For example, she discussed with the police her knowledge of who made the false documents. She stated “I don’t know who made all that stuff” (page 31, line 7 of her October 2013 statement transcript). Technically, that is ad idem with her trial testimony that she does not know who made all of the false documents, however, she also testified at trial that she knows that Mr. Osifo created at least some of the false documents, such as business licences, yet she never revealed that knowledge to the police during her interview.
[46] I may accept some, all or none of what a witness says. In short, I have trouble placing much reliance on the evidence of Ms. Tebow. Thus, I look to other evidence adduced at trial that may compensate for the frailties noted above.
[47] Apart from the evidence of Ms. Tebow, the Crown relies on the circumstantial evidence of three other witnesses at trial.
[48] First, a representative of Enterprise Car Rental, Ryan Sollis, testified about a 2013 red Hyundai Sonata car, licence plate number BPRL160, that was rented on March 4, 2013 by someone who presented a Driver’s Licence with the name and particulars of Kelly Osifo. That witness was unable to say that the accused in Court is the person who rented the car. The rental contract contained a clause that no other drivers besides the renter were permitted.
[49] Second, a lady who worked at the time at the Toronto-Dominion branch in Owen Sound on March 5, 2013, Lanna Bycraft, testified that she followed a suspicious lady out of the building that day and saw her get in to a red Hyundai Sonata, which car matched the licence plate of that rented from Enterprise the day before (BPRL160), being driven by a male. That witness was unable to say whether the lady was Ms. Tebow and whether the male driver was the accused, Mr. Osifo. No descriptions of the two persons were provided by Ms. Bycraft, although it would appear to be a safe finding of fact that the female was Ms. Tebow.
[50] Third, in the early evening on March 7, 2013, an Ontario Provincial Police Constable stopped the same red Hyundai Sonata car (BPRL160) for speeding on Highway 407 in Oakville. The officer was unable to say whether the male driver of that car was the accused in the Courtroom. The driver did present a Licence with the name and particulars of Kelly Osifo. The officer testified that the driver was significantly skinnier than the accused in the Courtroom. There was a female passenger in the car, named Lydia.
[51] Lydia, according to Ms. Tebow, was the name of Mr. Osifo’s girlfriend.
[52] I disagree with Mr. Newman that the evidence of Constable Sobilo is not only not corroborative but actually the opposite, vis a vis the evidence of Ms. Tebow. The evidence of the police officer is neutral. In some respects, it amounts to circumstantial proof that Mr. Osifo was the driver of the car that was stopped for speeding in Oakville and, thus, he was likely driving that same car in Grey County on the alleged offence dates. In other ways, principally the description of the driver given by Constable Sobilo, it amounts to evidence that Mr. Osifo was not the person who was stopped for speeding. In fact, the physical description of the driver’s build provided by Constable Sobilo is more consistent with Sammy than it is with the accused.
[53] Mr. Sollis, Ms. Bycraft and Constable Sobilo were all straight-forward witnesses whose evidence I accept. From that circumstantial evidence in totality, however, even combined with the testimony of Ms. Tebow, I am not comfortable in concluding that Mr. Osifo drove Ms. Tebow to the banks in question on the offence dates. That inference could be drawn from the circumstantial evidence, however, it is not the only reasonable inference that is available on the proven facts. It could also reasonably be that the accused did in fact rent the Hyundai Sonata on March 4, 2013 but someone else, whether Sammy or a third person, drove that car and Ms. Tebow to Grey County on the three offence dates in March 2013. Or it could be that Ms. Tebow drove herself to Grey County in that car on one or more of those dates in March 2013.
[54] There is evidence from Ms. Tebow, which evidence I accept, that (i) Sammy, also known to Ms. Tebow as Jay, was involved in some of the frauds; (ii) Sammy drove Ms. Tebow to at least two other locations besides Grey County – Campbellford and Bracebridge, Ontario; (iii) Sammy, like the accused, is a black man and is of similar age as the accused, although Ms. Tebow testified that he does not resemble Mr. Osifo.
[55] There is evidence from Ms. Tebow, which evidence I accept, that a third person, not Sammy or the accused, drove Ms. Tebow to at least one of the scam locations.
[56] There is evidence from Ms. Tebow, which evidence I accept, that she might have driven herself to Grey County on at least one of the dates in March 2013, likely March 6 and/or 7. It took a while to get there in cross-examination at trial, however, ultimately Ms. Tebow’s evidence was that she is sure about the accused having driven her to the banks only with respect to March 5, 2013.
[57] Given the sheer number of the frauds that Ms. Tebow committed across Ontario, over several months in 2013, it is reasonably possible that she is confused as to who drove her to Grey County. Further, it is reasonably possible that, although the police officer in Oakville compared the photo on the Driver’s Licence with the name Kelly Osifo to the driver of the Hyundai Sonata when it was stopped for speeding, in fact the driver was another black male – Sammy. Or it is reasonably possible that the driver of the Hyundai that was stopped for speeding in Oakville was indeed Mr. Osifo, especially in light of the female passenger being named Lydia (his alleged girlfriend at the time), however, Sammy or someone else drove Ms. Tebow to Grey County much earlier in the day on March 7, 2013, or Ms. Tebow drove herself.
[58] I am aware of and have considered the evidence of Mr. Sollis about the rental contract’s clause prohibiting other drivers besides the renter (Exhibit 5). I also acknowledge his evidence that, if the rented motor vehicle is stopped by the police and it is discovered that the driver is not the renter, contrary to the rental contract, the vehicle is usually impounded by the police.
[59] That evidence from Mr. Sollis does not add much to the equation. He admitted in cross-examination at trial that the said clause is sometimes not read to the renter and is frequently breached by renters of motor vehicles. Further, I am not satisfied that it would have been obvious to the police officer who stopped the car for speeding that the driver was not the person who rented the car.
[60] In summary, even if I take the circumstantial evidence at its highest and accept that Mr. Osifo rented the Hyundai Sonata on March 4, 2013, and that the same car was seen by Ms. Bycraft near the TD Bank in Owen Sound on March 5, 2013, and that the same car was stopped for speeding in Oakville on March 7, 2013 while being operated by Kelly Osifo, I do not necessarily conclude that the only reasonable inference to be drawn is that Mr. Osifo drove Ms. Tebow to Grey County on March 5, 6 and/or 7, 2013.
[61] That is one reasonable inference that could be drawn. Another is that Sammy drove Ms. Tebow to Grey County on March 5, 6 and/or 7, 2013. Another is that a third person drove Ms. Tebow to Grey County on one or more of those dates. Another is that Ms. Tebow drove herself to Grey County on one or more of those dates. Those other reasonable inferences that could be drawn are not incompatible with the evidence of Mr. Sollis, Ms. Bycraft and Constable Sobilo. Those other reasonable inferences are not incompatible with the evidence of Ms. Tebow, in cross-examination, with respect to March 6 and/or 7, 2013 (remember that she testified that it is possible that she drove herself on at least one of those days). Those other reasonable inferences are indeed directly incompatible with the in-chief evidence of Ms. Tebow at trial, however, for the reasons stated above, I do not find that evidence to be persuasive.
[62] In closing submissions, the Crown cautioned the Court against drawing inferences from the circumstantial evidence that are purely speculative. I do not agree that the alternative inferences mentioned above are speculative. They are reasonable ones that could fairly be drawn from the evidence at trial of Ms. Tebow that I do accept.
[63] There is nothing improper about a Court accepting some but not all of a witness’ evidence. In this case, the evidence of Ms. Tebow that I do accept is, unlike her allegations against Mr. Osifo, not dependent on her being capable of clearly remembering and isolating out three specific days in March 2013. It is more generic evidence about the involvement of other persons, for example, something that makes common sense as one would think that it would be difficult to have carried on this widespread criminal enterprise without a good deal of assistance.
[64] In closing submissions, the Crown argued that it could not have been Sammy who was involved in the Grey County frauds in March 2013 because Ms. Tebow testified that she did not meet Sammy until after March. I have trouble accepting that evidence from Ms. Tebow. It contradicts her testimony at trial that Sammy is one person who could implicate Mr. Osifo in the crimes before the Court. For that to be true, she must have known Sammy in March 2013.
V. Conclusion
[65] As we tell juries, proof of probable or likely guilt is not proof beyond a reasonable doubt. I have to be sure that Mr. Osifo participated in the March 2013 offences.
[66] Considering the totality of the evidence adduced at trial, both direct and circumstantial, testimonial and by way of exhibit, I am suspicious, but I am not sure that he was involved in those transactions.
[67] I am not accusing Ms. Tebow of lying under oath at trial. She could simply be mistaken. After all, she went on a fraud-binge for much of the year 2013, across Ontario. She undoubtedly has trouble remembering three specific days in March.
[68] In any event, given the frailties outlined above, I cannot accept her evidence, almost entirely uncorroborated (except for some relatively weak circumstantial evidence on identity highlighted previously herein), as amounting to proof beyond a reasonable doubt.
[69] I think that it is likely that Mr. Osifo was involved in frauds, however, I am not sure that he caused Ms. Tebow to use the forged documents, or that he possessed the stolen property, or that he attempted to defraud the banks, as described in the particulars of the offences contained in the Indictment.
[70] To confront the theory of the Crown directly, I am not sure that it was the accused who provided Ms. Tebow with the plan, the documents, the cover story and the transportation to effect the frauds in Grey County on March 5, 6 and/or 7, 2013.
[71] Consequently, despite the organized and thorough presentation of the case by Mr. Leger for the Crown, I find Mr. Osifo not guilty on all counts.
[72] I thank both Mr. Leger and Mr. Newman for making the trial a focussed and a succinct one.
Conlan J.
Released: February 4, 2016
CITATION: R. v. Osifo, 2016 ONSC 915
COURT FILE NO.: CR-15-119
DATE: 20160204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Kelly Osifo
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: February 4, 2016