



COURT
    OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Omitiran, 2020 ONCA 261

DATE: 20200420

DOCKET: M51469 (C67983)

Harvison
    Young J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Adekunle Johnson Omitiran

Applicant

Gabriel Gross-Stein and Riaz Sayani,
    for the applicant

Jeffrey Wyngaarden, for the respondent

Heard: March 31
    and April 9, 2020

REASONS
    FOR DECISION

A.

Introduction

[1]

The applicant was
    convicted of several offences arising out of a sophisticated credit card fraud scheme.
    The trial judge concluded that there was overwhelming body of evidence
    implicating the applicant as the perpetrator. On January 20, 2020, she
    sentenced the applicant to 48 months imprisonment and imposed a restitution
    order totalling $486,748.26. He has appealed his convictions and sentence and
    now seeks bail pending appeal.

[2]

I advised the parties
    on April 9, 2020, that the application was dismissed and that I would release
    the reasons later. These are those reasons.

B.

The offences

[3]

The numerous frauds in
    question involved stealing a customers personal information (such as credit
    card numbers, addresses, dates of birth, and PIN numbers), ordering a
    replacement credit card, and then using the fraudulent replacement card to make
    purchases or withdraw money without authorization. The fraudulent scheme was
    large and sophisticated. The trial judge found the applicant in possession of
    313 pieces of mail from over 200 people.

[4]

The applicant has been
    convicted on several fraud related charges before, in 2008 and 2015. He also has
    three prior convictions for failure to comply with a recognizance, including one
    while he was being supervised by his wife, one of his proposed sureties (2008),
    and one while he was awaiting trial for the offences currently under appeal
    (2018).

[5]

At the time of the
    offences under appeal, the applicant was on probation after being convicted for
    similar frauds. The offences now under appeal were committed in direct
    contradiction with his probation terms, which included a prohibition from
    possessing other peoples credit or debit cards, credit or debit card data,
    cheques, banking documents, or mail.

C.

Positions of the
    Parties

[6]

The applicant submits
    that there are arguable grounds of appeal and that there is no evidence that he
    would not surrender, given that he has attended court as required when he was
    on bail pending trial. He submits further that the public interest requires his
    release for the following reasons:

(i)

There are arguable
    grounds of appeal. These include the trial judges dismissal of an application
    pursuant to
R. v. OConnor
, [1995] 4 S.C.R. 411, in support of the
    applicants alternate suspect defence, and the trial judges alleged
    misapprehension of evidence relating to the use of nicknames, which was
    relevant to who possessed the Yorkville apartment where much of the
    incriminating evidence was found.

(ii)

While the applicant has
    a record for financial frauds, he is not violent.

(iii)

The release plan
    controls the risk that the applicant will reoffend. His wife, one of the proposed
    sureties, will pledge her equity in her house in the amount of approximately
    $400,000. The deterrent effect of this is very strong given the amount pledged
    is significantly higher than it was before, and his breach could put his wife
    and childrens home at risk.

(iv)

Recent case law has
    affirmed that the current COVID-19 pandemic is to be considered in bail
    hearings. This includes the fact that not only inmates are at greater risk of
    contracting COVID-19, but also that it is in the publics interest that the
    pandemic be contained. A reasonable member of the public will understand the
    applicants release in light of the public interest in preventing a mass
    outbreak and in preserving scarce medical resources.

[7]

For these reasons, the
    applicant concludes that the reviewability interest outweighs the enforceability
    interest, and the application should be allowed.

[8]

The Crown does not
    press its arguments that the accused has failed to meet his onus under s.
    679(3)(a) and (b) of the
Criminal Code
, R.S.C., 1985, c. C-46. Rather, it focuses
    on the public interest ground under s. 679(3)(c). The Crown points to four key
    factors which, it argues, weigh in favour of enforceability over reviewability
    and against release:

(i)

The grounds of appeal,
    if not frivolous, are very weak.

(ii)

The offences are
    serious and while not violent, caused financial pressure on many individuals
    and some financial institutions. The offences raise concerns about protection
    of the public, particularly in the present difficult economic circumstances
    created by the COVID-19 pandemic, and given the applicants record of
    reoffending.

(iii)

Because the applicant
    has some three years left on his sentence, he is unlikely to serve his sentence
    before his appeal is determined.

(iv)

The applicant has a
    demonstrated history of disregarding court orders and committing similar
    offences.

[9]

For all of these
    reasons, the Crown concludes that enforceability outweighs reviewability, and
    the application should be dismissed.

[10]

Within a day after the
    parties argued this motion before me on March 31, but before the court released
    its decision, the Crown advised that it had learned that the police were trying
    to arrest the applicant on new charges. The new charges are:

·

seven counts of breaching
    his recognizance, which the applicant entered into pending his trial on the offences
    now on appeal before this court;

·

one count of fraud;

·

one count of possession
    of property obtained by crime; and

·

one count of possession
    of identify information.

[11]

The charges arise from
    events occurring very shortly after the applicant was released on bail pending his
    trial in late 2017, until late 2019. Most of the breaches of his recognizance
    are relatively minor  such as being out of his home without his surety  but the
    other charges indicate additional fraudulent behavior.

[12]

First, it is alleged
    that between September and December 2017, the applicant was a party to a
    $1,035,000 fraud, where one victim was persuaded to transfer money to a
    purported romantic partner, but instead the funds went to bank accounts
    controlled by the applicant and his associates. Second, when
police executed a search warrant at the applicant's alleged new
    residence on May 9, 2019, they discovered valuable items such as suits and
    jewelry, which are suspected to have been obtained by crime. Subsequent
    analysis of the electronics seized from that residence revealed personal victim
    information, such as SIN numbers and credit cards.

[13]

The Crown submitted
    that the court should consider this information as a factor in this
    application. The applicant argued that this was new evidence that should not be
    admissible. After hearing argument on the point, I concluded that the new
    evidence was admissible.

[14]

On April 9, the parties
    made additional submissions on the new evidences relevance and weight. The
    Crown agreed with the applicant that the charges should be treated cautiously
    because they are simply allegations at this point. However, it did submit that
    the charges add weight to the public safety concern, given the applicants
    record of disregarding court orders and reoffending.

[15]

The applicant submitted
    that as allegations, the new charges should be given little weight. He
    acknowledged that he had not cross-examined Detective Constable Macdonald on
    his affidavit, which was sworn in support of the Crowns application and explains
    why the charges have not yet been formally laid. Nevertheless, the applicant
    submitted that there are inconsistencies on the face of the affidavit that
    should give rise to additional caution about the charges.

D.

Analysis

[16]

Detective Constable
    Macdonald states in his affidavit that he has tried unsuccessfully to arrange
    for the applicants arrest on the new charges at the Joyceville Penitentiary,
    where the applicant is incarcerated. While I agree with the applicant that Detective
    Constable Macdonald could have arrested him before he was taken to the Joyceville
    Penitentiary shortly after being sentenced in January, I do not think this impugns
    the fact that there are new charges and of what they allege. In any case, the
    new charges are simply allegations and must be treated cautiously as such. As
    such, I give them limited weight in this application.

[17]

I find that the grounds
    of appeal pass the low bar of not frivolous under s.  679(3)(a) of the
Criminal Code
.
    The first main ground of appeal is that the trial judge erred in dismissing the
    applicants
OConnor
motion for disclosure of third-party records in
    support of its alternate suspect theory. The third suspect was someone who had
    also been charged in respect of the same frauds but had been deported before
    trial. While this is arguable, it is not strong in the circumstances of this
    case. The applicants co-accused testified at the trial and tried to advance the
    theory that the central occupier of the Yorkville apartment was this person.
    The trial judge did not accept this evidence and gave thorough reasons for
    doing so.

[18]

The second ground of
    appeal is that the trial judge misapprehended the evidence relating to the use
    of a nickname by the appellant. This nickname was critical to the issue of who
    was in possession of the Yorkville apartment where much of the incriminating
    evidence was found. Again, a review of the trial judges reasons as a whole
    suggests that this is a weak ground of appeal.

[19]

With respect to s.
    679(3)(b), there is no evidence that the applicant will not surrender when
    required. He has done so in the past.

[20]

This application turns
    on the public interest factor under s. 679(3)(c). As I have just indicated, the
    merits of the appeal are arguable but weak. The central concern in this case is
    public safety. His offences were not violent, but they were serious, complex,
    and motivated by greed. The trial judge also noted that the frauds had an
    economic cost to society as a whole and required a sentence that emphasized
    denunciation and deterrence.

[21]

The applicant also has
    a significant record both for disregarding court orders and for committing
    similar frauds. He was on probation when he committed the offences now under
    appeal.

[22]

While I give little
    weight to the new charges, they do nothing to assuage the courts concern that the
    applicants release could put more people at risk of credit card and other
    frauds. As outlined earlier, the applicant is a repeat fraud offender and also
    has a history of convictions for breaching court orders. These charges are
    similar to the substantive charges with which he has been convicted in the
    past, and also include the breach of court orders:
see
R. v. C.L.
, 2018 ONCA 470, at
    paras. 15 and 16;
R. v. Mehan
, 2016 BCCA 129, 386 B.C.A.C. 1, at para.
    29.

[23]

Many individuals,
    businesses, and Canadas financial institutions are currently under increased
    stress due to the COVID-19 crisis. Given the applicants repeat offending and
    the current economic climate, protecting the public against the fraudulent
    schemes is an important factor weighing against the applicants release.

[24]

The applicant submitted
    that the release plan will provide the necessary assurance against breaches. The
    applicants wife is his proposed surety and he is to live with her. She is
    prepared to pledge the entire equity of over $400,000 in her home, which also houses
    their children. The applicant argues that he would not risk the roof over his
    childrens head.

[25]

I am not prepared to
    draw that inference. I note that it appears that the applicant has lived apart
    from his family at various times, though his wife states that he is a good
    father and that they miss him. In addition, his wife was his surety when the
    applicant breached his bail by failing to advise the police that he had moved
    in 2008. I am not satisfied that she is able to control her husbands conduct
    or that she would contact the police if he breached any conditions.

[26]

I do not agree that the
    recent COVID-19 outbreak tips the balance in favour of release in these
    circumstances, though it is a factor to be considered: see, for instance,
R. v. Kazman
,
    2020 ONCA 251, at paras. 16-18;
R. v. J.S.
, 2020 ONSC 1710, at paras. 18-19.



[27]

Finally, given the
    length of his sentence, it is highly unlikely that the applicant will have
    served his sentence before his appeal is determined.

[28]

In this case, given the
    weak grounds of appeal, the seriousness of the offences of which the applicant
    was convicted, the concerns about his compliance with any release plan, his record
    of recidivism, and the length of sentence that was imposed, the public interest
    analysis favours enforceability over reviewability. I cannot conclude that a
    reasonable, fully informed member of the public would understand his release to
    be warranted in these circumstances.

[29]

The application is
    dismissed.

Released: April 20, 2020

A. Harvison Young J.A.


