Court File and Parties

Court File No.: CR-20-11370 Date: 2024-11-21 Ontario Superior Court of Justice

Between: His Majesty the King – and – Ayodele Adekoya, Defendant

Counsel: Dan Mideo, for the Crown Jason Rabinovitch, for the Defendant

Heard: September 18, 2024

Reasons for Sentence

S.E. FRASER J.:

I. Overview

[1] On March 26, 2024, a jury found Ayodele Adekoya guilty of fraud over $5,000, possession of identity documents, uttering a forged document, and possession of property obtained by crime.

[2] I am now prepared to pronounce sentence.

II. The Facts

[3] I will first address the circumstance of the offences, the circumstances of Mr. Adekoya, and the impact of the offences on the victims and the community.

A. Circumstances of the Offence

[4] The case against Mr. Adekoya was a circumstantial one and the issue of one of identity.

[5] I accept as proven, all facts, express or implied, that are essential to the jury’s verdict of guilty.

[6] Mr. Adekoya perpetrated a credit card fraud. He made applications for Home Depot credit cards in the names of other persons. This came to the attention of Citibank, which is the credit card company behind the Home Depot credit card. Citibank’s internal investigators discerned similarities in IP address and device numbers which triggered further investigations and eventually the involvement of the police.

[7] In an apartment leased by Mr. Adekoya, the York Regional Police found countless identity documents. The Crown went on to prove that 113 credit card applications were made in the names of the people who did not make the application. Credit was issued in their name. It was agreed that those named in the credit applications did not authorize the application when it was made. It was also agreed what the limit on those cards were and how much was purchased on those cards. These credit applications and the cards were found in the apartment of Mr. Adekoya.

[8] York Regional Police attempted to determine who was making the applications by obtaining a warrant for the internet service provider and linked the IP addresses to the subscriber which produced an address. It then obtained information by warrant about who signed the lease of the physical address to which the IP address was connected.

[9] That led the police to the apartment and Mr. Adekoya. When a warrant was executed, the apartment contained identity documents in the names of persons other than Mr. Adekoya.

[10] Mr. Adekoya testified that he did not reside at the apartment at the time the police executed the warrant. Rather, he told the Court that he had sublet the apartment to a stranger and his wife. He told the Court that while he originally paid the rent and had the subtenant pay him, eventually he let the subtenant pay the rent directly and never went back to the apartment.

[11] By its verdict, the jury rejected Mr. Adekoya’s evidence and found that it was Mr. Adekoya who made the applications, who used the credit cards, that he forged documents and that he was in possession of property using the falsely obtained credit.

[12] The jury clearly rejected the story told by Mr. Adekoya that there was another tenant in the apartment and that he had nothing to do with the falsely obtained credit cards and the fake identification found in the apartment.

[13] I find as a fact that Mr. Adekoya was running an identity lab.

[14] The identity of 60 individuals were used and compromised. Identity documents of many others were found in the apartment.

[15] With Citibank alone, the risk of loss, in terms of the credit obtained, was $345,500. The total loss is $239,677 to Citibank.

[16] Based on the evidence, Mr. Adekoya’s victims were from across Canada from Edmonton to Toronto. A nurse. An oil worker. A person who worked in a dental office. Someone who worked in a bar.

[17] The identity documents found in the apartment related to persons from a wide geographic area: from the United States, Markham, East York, Toronto, North York, Kitchener, St. Catharines, and Kanata. Some persons were deceased, some were old, and some were young.

[18] The type of personal information held by Mr. Adekoya included the type of car the person had, the places they lived, whether they were immigrants, cell and home phone numbers, social insurance numbers, credit scores, mortgages, mothers’ maiden names, and more.

[19] Some persons had their mail redirected without their knowledge.

[20] Sixty individuals had their identification used and compromised.

B. Circumstances of the Offender

[21] I have had the benefit of a pre-sentence report and much of what we know about Mr. Adekoya is obtained from that report.

[22] Mr. Adekoya is a 44-year-old man who states that he was born in Nigeria. He is an only child.

[23] Mr. Adekoya told the probation officer who prepared the PSR that he had a normal upbringing. He lived an upper middle-class lifestyle, lived in a large house, and attended private schools.

[24] Mr. Adekoya reported that in 2007, when there was political turmoil, his parents were killed. He arrived home to find the bodies of his parents deceased in the family home. Mr. Adekoya reports that his father was actively involved in politics, and was in support of a political party that was not the government.

[25] Mr. Adekoya felt threatened. The government seized his family home and his assets and he fled from Nigeria to Switzerland where he remained for a few months before immigrating to Canada and claiming refugee status.

[26] Mr. Adekoya has not secured permanent residency in Canada as he has a criminal record. He’s now been in Ontario for 17 years and has been reporting to Canada Border Services Agency twice per month.

[27] Mr. Adekoya has engaged in some vocational training in Canada including a forklift course and he did not finish a four-year welding program.

[28] With his ex-partner he has a 12-year-old daughter, with whom he was in a long-term relationship. Sadly, his ex-partner is quite ill with kidney disease. His current partner is pregnant and is expecting a baby in January, 2025.

[29] Mr. Adekoya has a good friend who was interviewed for the purpose of the pre-sentence report. She states that he provides a great deal of support to her with her two children.

[30] Mr. Adekoya has worked for Falcon Ridge Landscaping and a renovation company. Each describe him as a good worker but cited concerns about him not showing up for work for lengthy periods of time, the longest being one year and six months straight. Absence has impeded his progress at Falcon Ridge Landscaping.

[31] He has a criminal record which I discuss in more detail later in these Reasons.

[32] In his evidence and in the pre-sentence report, Mr. Adekoya maintained his innocence and he is supported in this view by his longtime friend and his current partner who both believe that he was a victim of racial profiling and police tunnel vision. Mr. Adekoya told the probation officer that he was framed. In his allocution, Mr. Adekoya acknowledged making some mistakes and asked for a second chance.

C. Impact on the Victim and/or Community

[33] No victim impact statements were tendered.

[34] In terms of the impact on individuals, it was highly personal. Mr. Adekoya’s possession constituted a serious invasion of the privacy and personal security of his victims.

[35] In terms of the impact on Citibank, the Crown proved losses in the amount of $239,677 and a risk of loss of $345,500 which is the amount of credit advanced between August 20, 2016 and December, 2018, approximately a two-year period.

III. Positions of Crown and Defence

[36] The Crown seeks a sentence of 3.5 years, a restitution order, and a DNA order. The Crown argues that the appropriate range is 3.5 to 5 years.

[37] Mr. Adekoya asks that I impose a sentence of six months less a day, asking that I consider the collateral consequences of a criminal conviction considering that he fled Nigeria after the deaths of his parents and given that he would be at risk to be deported and forced to return.

IV. Mitigating and Aggravating Factors

A. Mitigating

[38] Mr. Adekoya’s family and the support that he provides to them, and his longtime friend is a mitigating factor.

[39] His ability to work and the periods of stability when working are also mitigating factors as they demonstrate his rehabilitative potential.

[40] Mr. Adekoya was arrested on July 20, 2020 and does not appear to have spent time in custody following his arrest. His release conditions are to remain in his residence from 10:00 p.m. to 6:00 a.m. daily along with other standard conditions. I find that these conditions were not restrictive such that they should not operate to reduce his sentence.

B. Aggravating

[41] The criminal record is an aggravating factor.

[42] Mr. Adekoya has convictions for driving with more than 80mg of alcohol in his blood, driving while impaired, dangerous operation of a motor vehicle.

[43] What I find most aggravating are his three sets of convictions for similar offences. In 2011, he was convicted of possession of a credit card which was not his own and a failure to comply, in 2015, he was convicted of fraud under $5,000, use of a credit card and possession of a counterfeit mark and a second set of 2015 convictions for identity theft, use of a forged document, and other offences.

[44] I also find the quantum of the fraud to be an aggravating factor. I accept that it is in the range of a large scale fraud as I will discuss further in more detail.

[45] The scale and breadth of the operation is an aggravating factor.

V. Analysis

A. Principles of Sentencing

[46] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence – both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[47] Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider parity such that offenders who commit similar offences in similar circumstances should receive similar sentence (See R. v. Friesen, 2020 SCC 9, at para. 31). This principle is reflected in s. 718.2 (b) of the Criminal Code.

[48] In Friesen, the Supreme Court again stated that that parity is an expression of proportionality. Sentencing precedents reflect “the range of factual situations in the world and a plurality of judicial perspectives. Precedents embody the collective experience and the wisdom of the judiciary. They are the practical expression of both parity and proportionality.” (Friesen, at paras. 32 and 33.)

[49] I note also that I am bound by the principle of restraint. This means that I should not deprive an offender of his liberty if less restrictive sanctions may be appropriate in the circumstances.

[50] Sentencing must be tailored to the circumstances of the offence and the offender. The process of arriving at a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. (See R. v. Nur, 2015 SCC 15, at para. 43.)

B. Sentencing Range

[51] In R. v. Scholz, 2021 ONCA 506, the Court of Appeal for Ontario reiterated that the established range of sentence for large scale frauds is three to five years, and that the offender does not have to be in a position of trust to warrant the penalty of a penitentiary term of imprisonment. See paras. 18 and 22.

[52] There have been exceptions to the range where the individual circumstances require. See R. v. Dobis (2002), 58 OR (3d) 536, 2002 ONCA 1000, at paras. 36-47.

[53] In R. v. Okubadejo, [2008] O.J. No. 5416, a case involving an unsophisticated identity lab, Justice Spies imposed sentences of 42 months for possession of a counterfeit mark, 40 months for possession of credit card data and 18 months for each count of possession of a forged credit card less credits for pre-trial custody. In my view, the facts of this case are very similar, and parity would demand a similar sentence.

[54] In R. v. Velupillai, [2007] O.J. No. 5495 (OCJ), in respect of a case involving multiple accused on charges of conspiracy to defraud the holders of debit and credit cards. the Court stated at paras. 7 and 8 that:

Though there is no direct contact between the perpetrators of this scheme and their victims, the execution of this conspiracy resulted in great disruption to the financial security of legitimate card holders and dislocations within the institutions that were force to honour the losses that resulted to their clients. The net effect what at a high cost in the conduct of financial dealings with the marketplace generally. Detection of this time of crime is difficult for the authorities and often results in no recover of the actual losses given the dispersed nature of the responsibility for the damages. ….

Denunciation and general deterrence step to the fore as the governing sentencing principles in cases like this since those who are attracted to take part in these times are very often as here otherwise decent citizens who, having assessed the risk of detection have decided to attempt to execute their criminal intent in the hope of receiving compensation far in excess of the risk of being detected and apprehended yet all the while knowing that what they are doing is harming innocent and unknowing victims.

C. Collateral Immigration Consequences

[55] In R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739, the Supreme Court of Canada considered whether sentencing judges can exercise their discretion to take collateral immigration consequences into account. The Court held at para. 14 that they may, provided that “the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.” Further, the Court held at para. 18 that:

It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.

[56] Justice Moldaver expressed caution in adjusting a sentence to circumvent Parliament’s position on immigration. The Court adopted the position set out by Justice Doherty of the Court of Appeal for Ontario in R. v. Hamilton (2004) 72 O.R. (3d) 1 (C.A.), 2004 ONCA 1000, at paras. 156 and 158, which provided that the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses.

[57] In short, collateral immigration consequences are a relevant factor among many related to the nature and gravity of the offence, the degree of responsibility of the offender, and the offender’s personal circumstances. See R. v. Pham, supra, at para. 20.

D. Sentencing Black Offenders

[58] Mr. Adekoya is a Black offender. I acknowledge, the following principles set out in R. v. Morris, 2021 ONCA 680, at paras. 1 and 123:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society... most notably [in] the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis.

[C]ourts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances.

[59] Evidence about racism and the impact upon the offender can assist a judge in determining a fit sentence and can lead to a sentence below the established range. See R. v. Morris, supra, at para. 109.

[60] I have no specific evidence on the impact of anti-Black racism upon Mr. Adekoya. The predominant challenges that he faced appear to come from the loss of his parents, his displacement from Nigeria, and his failure to secure permanent residency because of his criminal record.

E. Application

[61] A custodial sentence is required. This was a large fraud. I believe the Crown’s proposal of 3.5 years is appropriate considering parity, the nature of the fraud, the length of time over which it was carried out and the harm to the community. Denunciation and deterrence are of paramount concern.

[62] There is no support that a sentence of six months less one day is appropriate. I find this because Mr. Adekoya is not a first-time offender, he received such a sentence from the Court when convicted previously.

[63] Mr. Adekoya argues that in the alternative, I should impose a conditional sentence order (CSO). He argues that this is not a crime of violence and that it would send a message to the Immigration and Refugee Board.

[64] If not for the convictions involving breach of Court orders, Mr. Adekoya might be the perfect candidate for a conditional sentence order (CSO) and it would serve the fundamental purpose of sentencing to impose one. It would have the salutary effect of Mr. Adekoya being able to continue to care for his family. In addition, the PSR notes that Mr. Adekoya could benefit from rehabilitative programming if placed on community supervision. I agree that he has potential. He admitted mistakes to me, which is at odds with his belief that he was the victim of an improper police investigation. I have reason to doubt his statement to me.

[65] However, Mr. Adekoya has failed to comply several times, and his record includes crimes of dishonesty. I find that a CSO is not appropriate considering these factors.

[66] Mr. Adekoya is at risk of deportation and that is a collateral consequence that concerns me. Counsel argues that he is at risk of grave harm should he be deported. I have no evidence or information about what Mr. Adekoya might face should he be ordered deported from Canada. The immigration consequences concern me greatly.

[67] I have little confidence in Mr. Adekoya’s reporting of his situation. Even if I were to believe all of it, a sentence of six months less a day would take the sentence far below the appropriate range and in my view would result in an unfit sentence. The sentence must reflect his degree of moral responsibility.

[68] I have serious concerns for his children and support that he can provide for their upbringing, especially given that his child’s mother is unwell and that there is a child who will soon be born whose well-being is likely strengthened by the presence of a parent. This applies to his chosen family to whom he also assists.

[69] I will reduce the sentence to account for this but in my view, mitigation on this ground cannot in this case bring the sentence below the range and the sentence remain fit.

[70] There are no adjustments for pre-trial custody or conditions of release as Mr. Adekoya was arrested and released and I have found that the release conditions were not restrictive.

[71] Mr. Adekoya, please rise so that I may pronounce sentence:

[72] On count one, for fraud over $5,000, I sentence you to 40 months incarceration.

[73] On count two, for possession of identity documents, I sentence you to 40 months incarceration to be served concurrently.

[74] On count three, for uttering a forged document, I sentence you to 40 months incarceration to be served concurrently.

[75] On count four, for possession of property obtained by crime, I sentence you to 40 months incarceration to be served concurrently.

VI. Ancillary Orders

[76] There shall be a DNA order.

[77] I also make a restitution order under s. 738(1) in the amount of $239,677 in favour of Citibank.

Justice S.E. Fraser

Date: November 21, 2024

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – AYODELE ADEKOYA Defendant REASONS FOR SENTENCE Justice S.E. Fraser

Released: November 21, 2024