



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Onasanya, 2018 ONCA 932

DATE: 20181120

DOCKET: C64229

Watt, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Oluyombo Onasanya

Appellant

Maurizio Stellato, for the Appellant

Catherine
    Weiler, for the Respondent

Heard and released orally: November 9, 2018

On appeal from the conviction entered by Justice Riun
    Shandler of the Ontario Court of Justice on March 30, 2017.

REASONS FOR DECISION

OVERVIEW

[1]

Following a trial in the Ontario Court of Justice, the appellant was
    convicted of one count of fraud over $5,000 and one count of the possession of
    property obtained by crime exceeding $5,000. The appellant appeals his
    convictions.

[2]

At the conclusion of the appeal hearing, we dismissed the appellants
    appeal, with reasons to follow. These are those reasons.

FACTS

[3]

The evidence at trial consisted of an agreed statement of facts and the
    evidence of the appellant.

[4]

The appellant is 26 years old. He came to Canada from Nigeria when he
    was 17 years old. He completed three years of a business and commerce program
    at York University. Then, beginning in September 2014, the appellant pursued a
    course in business management financial services at Humber College.

[5]

It was agreed at trial that: (i) in late May 2015, the appellant opened
    business and personal accounts at a branch of the Royal Bank of Canada (RBC);
    (ii) the appellant opened the accounts in his own name; and (iii) on the
    application, he indicated that he was the sole proprietor of a business
    operating under the business name KELLYDICKSON & CO.

[6]

There was no dispute that on June 5, 2015, the sum of $30,999.77 was
    deposited by way of several electronic funds transfers into the business
    account and that a further $50,000 was deposited in the same way on June 12,
    2015.

[7]

Both amounts originated from a personal securities account in the name
    of Kelly Dickson at Manulife Securities (Manulife). Ms. Dickson did not
    authorize the transfer of the funds into the appellants business account. Ms.
    Dickson had unknowingly succumbed to identity theft when she had attempted to
    open documents referred to in an email ostensibly sent by her real estate
    broker, but actually sent by a person who had hacked into her brokers email
    account.

[8]

As a result of the theft of Ms. Dicksons identity, Manulife received
    emails from Ms. Dicksons hacked email account directing that monies in her
    RRSP account be transferred to Kelly Dickson at the appellants RBC business
    account. Manulife acted on those emails and made the transfers. None of the transfers
    were authorized by Ms. Dickson.

[9]

Between June 8 and 18, 2015, the appellants business account saw
    numerous ATM withdrawals, as well as electronic transfers of funds into his
    personal account. In addition, debit transactions for various retail purchases
    were charged against both accounts. As of June 18, 2015, when the accounts were
    frozen, the balance in the appellants business account was $10,033.94 and the
    balance in his personal account was $957.29. The unauthorized transfers from
    Manulife were the only source of the funds that went into the appellants
    accounts.

[10]

At
    trial, the appellant testified that in 2015, as a result of an on-line job
    search, he accepted an offer of employment from a company in Dubai to manage a
    computer business it wanted to set up in Toronto. The appellant could not
    recall the name of the person in Dubai with whom he dealt. Also, the appellant
    said he did not have copies of any texts with the person in Dubai or the number
    he used to reach that person.

[11]

According
    to the appellant, following the instructions of the person in Dubai, he registered
    the business name KELLYDICKSON & CO. and opened the RBC accounts. The
    appellant sent the person in Dubai a void cheque for the business account so
    that money could be sent to it. According to the appellant, the person in Dubai
    advised he had a business partner in Canada who would purchase inventory and
    set up a store.

[12]

The
    appellant testified that he did not have any involvement with arranging for the
    deposit of money from Manulife into his business account. He stated that he had
    no contact with Ms. Dickson, her real estate broker, or anyone at Manulife.

[13]

The
    appellant also gave evidence that he did not keep any of the money transferred
    into the RBC accounts. Instead, he gave all of the withdrawn funds to   Nazir,
    the business partner of the person in Dubai, at meetings in public places. He
    also gave Nazir the debit card for the accounts for a period of a day. The
    appellant thought Nazir was using the money to purchase computers. He did not
    believe the money was stolen. The appellant denied using any of the funds to
    make personal purchases.

THE CONVICTIONS

[14]

The
    appellant was charged with four counts of fraud in respect of the June 5, 2015
    transfers, totaling $30,999.77, from Manulife to his business account and ten
    counts of fraud in respect of the June 12 transfers totaling $50,000.

[15]

The
    trial judge acquitted the appellant on the counts relating to the June 5
    deposits. Although he did not accept the appellants entire account of events,
    the trial judge had a reasonable doubt as to whether the appellant knew at the
    start that he was becoming involved in a fraudulent enterprise.

[16]

However,
    the trial judge found that the state of the appellants knowledge changed. The
    nature of the deposits into the business account, the frequent small cash
    withdrawals, the appellants contention that he handed over cash to a person
    whom he only knew by his first name, and the use of the withdrawals to make
    purchases unrelated to the business were inconsistent with any legitimate
    business purpose.

[17]

As
    well, the trial judge rejected the appellants evidence that the debit card
    purchases were made by or on behalf of Nazir. He found the appellant was
    responsible for those purchases.

[18]

The
    trial judge convicted the appellant of possession of property obtained by
    crime. He also concluded the appellant had engaged in fraudulent conduct by
    allowing his two accounts to be used for fraudulent purposes and distributing
    those funds. He found the appellant guilty as a party to the fraud of Kelly
    Dickson in relation to the ten counts concerning the June 12 deposits, but
    conditionally stayed nine counts, registering one conviction for fraud over $5,000.

ISSUES ON APPEAL

[19]

The
    appellant focuses his grounds of appeal on the trial judges findings regarding
    the fault element of both offences. In oral argument, the appellant clarified
    that he was not arguing the trial judges verdicts were unreasonable; nor does
    he contend the trial judge erred in his understanding of the legal principle of
    wilful blindness; nor does he submit the trial judges findings were tainted by
    palpable and overriding error. Instead, the appellant submits that the evidence
    before the trial judge could not support a finding that the appellant was
    wilfully blind.

ANALYSIS

[20]

The
    appellant submits that since he testified he had no suspicions about what was
    going on, the trial judge did not have any evidentiary basis upon which to find
    that he was wilfully blind to the source of the money deposited into his
    accounts. As well, the appellant contends that there was no evidence he spent
    any of the money on himself. As a result, there was no basis for the trial
    judge to find that the appellant knew that all or part of the property was
    obtained by the commission of an indictable offence:
Criminal Code
,
    354(1).

[21]

As
    to the fraud conviction, the appellant argues there was no evidence that he had
    direct knowledge the funds were coming from a fraud and, as a result, there
    were no facts to which the trial judge could apply the doctrine of wilful
    blindness. As a result, there was no basis on which the trial judge could find
    that the Crown had proved beyond a reasonable doubt the fault element for fraud
     that is, (i) subjective knowledge of the prohibited act and (ii) subjective
    knowledge that the prohibited act could have as a consequence the deprivation
    of another (which deprivation may consist in knowledge that the victims
    pecuniary interests are put at risk):
R. v. Zlatic
, [1993] 2 S.C.R.
    29, at p. 43.

[22]

We
    are not persuaded by either submission.

[23]

Wilful
    blindness can substitute for actual knowledge whenever knowledge is a component
    of the fault element of the crime:
R. v. Briscoe
, 2010 SCC 13, [2010]
    1 SCR 411, at para. 21. Wilful blindness imputes knowledge to an accused where
    his suspicion is aroused to the point where he sees the need for further
    inquiries but makes a deliberate choice not to make those inquiries:
R. v.
    Burnett
, 2018 ONCA 790, at para. 142.

[24]

The
    evidentiary threshold for wilful blindness may be met by an accuseds own
    evidence, where it discloses inherently suspicious circumstances characterized
    by unclear details and at odds with common sense and human experience:
R.
    v. Morales
(2006), 81 O.R. (3d) 161 (C.A.), at para. 26. The threshold may
    also be met by the cumulative effect of several strands of circumstantial
    evidence from different sources woven together in a mosaic:
Burnett
,
    at para. 143.

[25]

The
    trial judges reasons disclose that he rested both convictions on the combination
    of the inherently suspicious circumstances disclosed by the appellants
    evidence and the cumulative effect of the circumstantial evidence.

[26]

In
    concluding that by June 11, 2015  the day before the second deposit  the appellant
    was in full knowledge of facts that this was no longer any kind of legitimate
    business enterprise, the trial judge relied upon evidence of: (i) the amount
    of money deposited into the business account; (ii) the nature of the numerous
    withdrawals in a short period of time  as graphically presented on the
    schedule to the respondents factum; and (iii) the frequent Interac purchases unrelated
    to any legitimate business purpose.

[27]

As
    well, the trial judge clearly explained why he rejected the appellants evidence
    that the Interac purchases were made by or on behalf of Nazir. His adverse
    findings about the appellants credibility were based not only on
    inconsistencies in the appellants evidence, but also on certain agreed facts,
    such as the videos recording the appellant withdrawing cash from ATMs.

[28]

The
    trial judge found that by June 11, 2015, the appellant was in full knowledge
    of facts that this was no longer any kind of legitimate business enterprise. Then,
    on June 12, 2015, another 10 separate deposits were made into [the
    appellants] business account amounting to $50,000. This led the trial judge
    to find that the appellant knew that those funds were obtained by crime and
    that inquiries had to be made as to the source of those funds and what role his
    registered business and business account was being used for. The defendant took
    no such steps, he made no such inquiries.

[29]

The
    trial judge then examined the appellants conduct following the second set of
    deposits: he continued to make frequent cash withdrawals and Interac purchases
    unrelated to any business purpose.

[30]

Taken
    together, that evidence met the evidentiary threshold for wilful blindness.
    Consequently, we do not accept the appellants submission that the trial judge
    applied a standard of negligence or recklessness to the evidence. Indeed, the
    words should or ought do not appear in the reasons.

[31]

We
    see no misapplication of the principle of wilful blindness to the facts found.
    As a result, we see no basis for appellate intervention either in the conviction
    for fraud over or in the conviction for possession of property obtained by
    crime. The combination of the inherently suspicious circumstances disclosed by
    the appellants evidence and the cumulative effect of the other findings of
    fact made by the trial judge operated as an adequate evidentiary basis for the
    trial judges finding that the appellant, at a minimum, was wilfully blind to
    the source of the funds deposited into his account.

DISPOSITION

[32]

The
    appeal is dismissed.


David Watt J.A.


K. van Rensburg J.A.
David Brown J.A.


