



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lubansa, 2018 ONCA 227

DATE: 20180308

DOCKET: C62877

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wisdom Lubansa

Appellant

Melanie Webb, for the appellant

Mabel Lai, for the respondent

Heard and released orally: March 05, 2018

On appeal from the conviction
    entered on April 25, 2016 and the sentence imposed on September 9, 2016 by
    Justice M. Speyer of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant argues that the trial judge erred in concluding that his
    detention by police was lawful. In our view, the officers in this case had
    authority to investigate a vehicle that was parked in an empty community centre
    parking lot at 3:00 a.m. with its motor running and lights on.

[2]

This investigation could, as here, include asking the driver to produce
    identification and vehicle information. That investigation continued to be
    reasonable as the officer discovered that there was a problem with the license
    plate attached to the vehicle. Further investigation revealed that the plate
    was linked to an identity theft.

[3]

The trial judge did not therefore err in dismissing the appellants ss.
    8 and 9
Charter
application.

[4]

In this court, the appellant also alleges a ss. 10 (a) and (b)
Charter
breach. These issues were not raised in the court below. This court does
    not have the benefit of any finding or analysis by the trial judge and, as a
    result, we decline to address this issue for the first time on appeal.

[5]

The appellant further submits that the trial judge erred in finding him
    guilty of three counts of fraud over $5000. It is not in dispute that he was
    found in possession of documentation relating to 12 bank accounts that were opened
    using false names and counterfeit documents. These accounts put the banks
    pecuniary interest at risk.

[6]

The trial judge properly instructed herself as to the elements of fraud.

[7]

On the factual record in this case, it was open to the trial judge to
    conclude that there were acts of deceit, the banks had been placed at pecuniary
    risk, the appellant was aware of this risk and that the risk exceeded $5000.

[8]

Finally, the appellant also seeks leave to appeal sentence arguing that
    the sentence imposed was excessive. In our view, in reaching her decision on
    sentence, the trial judge carefully considered all of the aggravating and
    mitigating circumstances. She committed no error in principle and we see no
    basis to interfere with the sentence imposed.

[9]

For these reasons, the appeal from conviction and sentence are
    dismissed.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

Fairburn
    J.A.


