



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aghayere, 2016 ONCA 54

DATE: 20160119

DOCKET: C57407

Feldman, Cronk and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nosakhare Aghayere

Appellant

Mark C. Halfyard and Breana Vandebeek, for the appellant

Michael Perlin, for the respondent

Heard: January 14, 2016

On appeal from the convictions entered on September 15,
    2011 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without
    a jury.

By the Court:

Introduction

[1]

The appellant was convicted of a series of offences arising from a large
    scale internet fraud scheme operated from his home: i) conspiracy to commit
    fraud on the public of an amount exceeding $5,000; ii) knowingly possessing
    fraudulent instruments/machinery to be used to commit forgery; and iii)
    possession of property obtained by crime having a value of less than $5,000.  A
    tenant in the appellants house, Courage Idahosa, was charged with the same
    three fraud-related offences and pleaded guilty.  In so doing, he implicated
    others, but not the appellant, in the commission of the fraud.

[2]

The appellant appeals from his convictions.

Issues

[3]

The appellant advances one ground of appeal.  He argues that the trial
    judge erred by admitting, as similar act evidence, evidence tendered by the
    Crown regarding his convictions in 2003 of four fraud-related offences, to
    which he had pleaded guilty.  The incidents in question occurred in 2000; they involved
    the alteration of stolen corporate cheques and the depositing of the altered
    cheques, by the appellant, in automatic teller machines (ATMs).  The similar
    act evidence consisted of certified copies of the indictment and the transcript
    of the appellants 2003 guilty plea proceeding.  The appellant submits that the
    trial judge erred by concluding that this evidence constituted admissible
    similar act evidence and by relying on it as general propensity evidence.

Discussion

(1)

Nature of the Fraud

[4]

In brief, the fraud in issue at trial involved the theft or
    interception, by unknown persons and means, of valid corporate cheques, the
    subsequent use of chemicals to modify or wash some of the original
    information on the face of the cheques, and the alteration of either or both
    the amounts of the cheques and the named payees.  In tandem with these
    activities, one of the participants in the fraudulent scheme, known as a
    catcher, would then approach members of the public in Canada or the United
    States over the internet, using various scams and pretexts to dupe the targeted
    victims into accepting and cashing the cheques and remitting the funds to the fraudsters. 
    The evidence at trial suggested that the scheme as implemented involved
    hundreds of fraudulent cheques and victims, and sizable monetary losses to the
    victims.

(2)

Defence Position at Trial

[5]

At trial, the appellant conceded that he knew the internet fraud had
    been carried out at his home.  However, he denied that he had anything to do
    with it.  He maintained that Mr. Idahosa and another tenant in his house had
    effected the fraud, without his participation.

(3)

Challenge to the Similar Act Evidence

[6]

In our view, the appellants challenge to the admission and use of the
    similar act evidence fails.  We say this for three main reasons.

[7]

First, we see no error in the trial judges conclusions that the
    proposed similar act evidence was relevant to the issues before the court given
    the purposes for which it was tendered and, further, that the similarities
    between the appellants admitted prior conduct and the offences alleged were
    sufficient to overcome the objective improbability of coincidence.

[8]

The trial judge accepted the Crowns argument that the similar act
    evidence was relevant: i) to rebut the appellants anticipated defence that he
    was not an active participant in the offences alleged and that it was
    coincidental that the crimes were run out of his house; ii) to the issue
    whether the appellant possessed and accessed the information located in his
    home that evidenced the fraudulent acts; and iii) to the question whether the
    charges alleged involved a plan, system or design effected by multiple persons.

[9]

In the context of these issues, the trial judge assessed the
    similarities and dissimilarities between the prior frauds and the charges
    alleged, as well as the critical question whether the probative value of the
    evidence of the prior frauds in relation to the particular issues for which it
    was proffered outweighed its potential prejudice, thereby justifying its
    reception: see
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para.
    55.  We see no flaw in his analysis of these issues or in his application of
    the governing principles concerning the admission of similar act evidence.

[10]

We
    begin with the facts regarding the prior frauds, as admitted by the appellant
    at his guilty plea proceeding.  The admitted facts included the following: i)
    the four counts of fraud concerned four separate incidents when the appellant
    was observed attending banks and ATMs to deposit cheques or withdraw funds
    deposited using some of the cheques; ii) each of the cheques had been issued by
    and had been made payable to different corporate persons; iii) each of the
    cheques had been stolen; iv) each of the cheques had been modified by
    alteration of the name of the payee and/or the stated value of the cheque; and
    v) on each occasion, the appellant took steps to hide his identity by
    attempting to disguise his appearance.

[11]

In
    addition, both Crown counsel and defence counsel submitted at the plea
    proceeding, and the trial judge found as a fact, that the appellant did not act
    alone in committing the 2000 offences.

[12]

These
    admitted facts formed the backdrop to the trial judges similar act analysis. 
    In his ruling, the trial judge recognized that a period of seven years
    separated the appellants prior frauds and the predicate offences and that
    there were dissimilarities in the details of the frauds (at paras. 4546 and
    52).  However, based on the admitted facts concerning the prior frauds and the
    alleged circumstances of the predicate offences, the trial judge identified
    numerous similarities between the crimes:

(1)

the use of
    multiple, intercepted and stolen cheques, issued by numerous different
    corporate payors;

(2)

critically,
    the alteration of the stolen cheques, to change the named payees and the stated
    value of the cheques;

(3)

the
    involvement of more than one person, over a period of time, in committing the
    offences;

(4)

the
    creation and implementation of a particular plan, over time, to victimize
    either the drawers of the cheques or other innocent third parties; and

(5)

the
    assumption of different identities (the appellants use of third party bank
    accounts to access funds (the prior frauds) and the fraudsters use of
    different identities when targeting potential victims (the offences charged).

[13]

In
    the trial judges view, these factors established sufficient similarity between
    the basic foundation of both sets of crimes, the use and alteration of cheques
    and the creation of a plan [to defraud] so as to warrant the admission of the
    similar act evidence for the limited purposes he described (at paras. 57 and
    61).  We agree.

[14]

Second,
    and importantly, apart altogether from the similar act evidence, the Crowns
    case against the appellant was formidable.  The trial judge made the following
    findings of fact, without reference to the similar act evidence:

1)

numerous
    documents and emails seized by the police at the appellants home connected the
    appellant to the frauds;

2)

references
    in the fraud-related documentation found at the appellants house referenced
    names and email addresses used by the appellant;

3)

both
    the desktop computer found in the appellants home office and a laptop computer
    found in the room occupied by Mr. Idahosa, the appellants co-accused, were
    used in the fraud;

4)

the
    appellant admitted to the police in a videotaped statement that he was at least
    a middleman who connected people with different required skill sets; and

5)

the
    appellants testimony at trial confirmed that he knew that a cheque-based
    internet fraud was being committed within his home.

[15]

These
    findings are amply supported by the evidentiary record and are not challenged
    on appeal.  They do not depend on the similar act evidence.  In our view, based
    on these findings, even if the similar act evidence should not have been
    admitted, the strength of the Crowns case was such that the verdicts would
    have been the same if the evidence had not been received:
R. v. Van
,
    2009 SCC 22, [2009] 1 S.C.R. 716, at para. 36.

[16]

Third,
    we do not accept the appellants contention that the trial judge relied on the
    similar act evidence for impermissible, general-propensity reasoning.  In his
    reasons, the trial judge made the crucial findings described above prior to any
    mention of the similar act evidence.  Having first made these findings, he then
    concluded, at para. 122, that the evidence against the appellant was
    overwhelming, before commenting briefly on the similar act evidence.

[17]

Further,
    we see nothing in the trial judges reasons indicating that he relied on the
    similar act evidence to infer guilt on the prohibited logic that the
    appellants prior fraud convictions demonstrated that he was the type of person
    who would engage in fraud.  Rather, because of the similarities between the
    crimes, the fact that the internet fraud scheme was being operated out of the
    appellants home and with his knowledge enhanced the likelihood of his
    participation in the offences charged.  The prior frauds to which the appellant
    had pled guilty furnished evidence of specific propensity that bore distinctive
    features that reappeared in the charged conduct: the use of altered and stolen
    cheques; a repetitive plan or scheme, over time, using stolen cheques; and the
    appellants self-representation as someone other than himself.

Disposition

[18]

For
    the reasons given, the conviction appeal is dismissed.

Released: (K.F.) January 19, 2016

K. Feldman J.A.

E.A. Cronk J.A.

L.B. Roberts J.A.


