



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Mojadiddi, 2021 ONCA 796

DATE: 20211110

DOCKET: C69128

Tulloch, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sakia Mojadiddi

Appellant

Sakia Mojadiddi, acting in person

Dan Stein, appearing as duty counsel

Stephanie Lewis, for the respondent

Heard: November 2, 2021 by video conference

On appeal from the sentence imposed on January 20, 2021
    by Justice Paul T. OMarra of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to one count
    of fraud over $5,000. The facts underlying the guilty plea are as follows.

[2]

Over the course of 10 years, the
    appellant defrauded 47 people of $1,077,584 in her role as the president of the
    Afghan Refugee Relief Organization (ARR). Between 2007 and 2017, 47
    people went to the appellant for help because their families were in
    danger and they were trying to secure safe passage to Canada for
    themselves or their relatives and friends.

[3]

The appellant charged a registration fee
    and an office paperwork fee and required a financial deposit to start the
    sponsorship process. She met with family members who were interested in
    sponsoring their foreign family members. Neither the appellant, nor ARR, or ARR
    employees held a sponsorship designation from Immigration, Refugees and
    Citizenship Canada (IRCC). No one at the ARR was a certified immigration
    consultant. None of the refugees applications was ever filed with the IRCC. The
    appellant was arrested in July 2017, but she continued to request additional
    funds from victims until her subsequent arrest for additional fraud
    charges in February 2018.

[4]

Based on the appellants acceptance of the agreed facts, the trial judge
    registered a conviction against her for one count of fraud over $5,000. The
    trial judge made a restitution order for the appellant to pay the sum of
    $946,083.99. He also ordered a fine in lieu of forfeiture in the total amount
    of $1,077,584. In default of payment of the fine, a five-year term of
    imprisonment would be imposed.

[5]

The trial judge found that of the
    $1,077,584 proceeds of fraud, $946,083.99 remain outstanding. He calculated the
    amount outstanding as follows:

The total proceeds taken from the 47 victims as a result of
    this swindle was the sum of $1,077,584. Six victims were able to recover
    $71,500. On November 14, 2019, Morassa Rizvi, a former co-accused, re-paid
    $60,000. Thus, the net amount that remains outstanding as a result of Ms.
    Mojadiddis criminal enterprise is $946,083.99.



Ms. Mojadiddi has not made any restitution to any victims. Some
    monies were returned to several victims; however, those funds were traced to
    payments made by other victims.

[6]

The appellant has abandoned her
    conviction appeal and makes two submissions on this sentence appeal. First, she
    argues that the sentence is excessive. Second, she submits that the trial judge
    failed to account for payments that have been made to victims when calculating
    the amount of the fine in lieu of forfeiture.

[7]

The first submission may be dealt with
    summarily. This was a particularly egregious fraud. Not only did the victims lose
    money, but
many of the people seeking the
    appellants help also endured hardship in following the appellants
    instructions. For example, on the appellants advice, many left their homes to travel
    to other countries in order to make their refugee application. This was also a
    complex fraud, carried out over many years, against multiple vulnerable
    victims.  In these circumstances, the penal portion of her sentence is on the
    lenient end of the spectrum. Indeed, we would not wish anything in these
    reasons to be interpreted as saying that such a low sentence is appropriate in
    complex fraud cases.

[8]

The second submission was advanced by
    duty counsel. He argued that the trial judge should have imposed a fine in lieu
    of forfeiture in the same amount as the restitution award. To do otherwise, he
    submits, would be to fail to give credit to the amount of $131,500 that has
    been repaid to the victims.

[9]

The difference is significant because
    under s. 462.37(4)(vi) of the
Criminal Code
, R.S.C. 1985, c. C-46, where the fine exceeds
    $250,000 and is less than $1,000,000, the court shall, upon default of payment
    of the fine, impose a term of imprisonment of not less than three years and not
    exceeding five years. However, under s. 462.37(4)(vii), if the fine exceeds
    $1,000,000, then the court shall, upon default of payment of the fine, impose a
    term of imprisonment of not less than five years and not exceeding ten years.

[10]

In response to this submission, the Crown takes the
    position that the trial judge had no discretion in fixing the amount of the
    fine in lieu of forfeiture and was obliged to set the fine at the full amount
    of the proceeds of the fraud, being
$1,077,584.

[11]

We do not give effect to this ground of appeal. The
    purpose of a fine in lieu of forfeiture is not restitutionary. Instead, such an
    order is made to ensure that the offender is deprived
of the proceeds of
    crime, and to deter offenders and others from committing designated offences.
    Forfeiture and fine in lieu of forfeiture orders are not a means by which to
    punish offenders, but a means by which to replace the proceeds of crime:
R
    v. Lavigne
, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras. 16, 23, 25, 26 and
    28;
R. v. Schoer
, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 93.

[12]

In
    the case at bar, in fixing the fine in lieu of forfeiture, the appellant should
    not receive any credit for the payments received by some of the victims.

[13]

The
    $60,000 that was paid by her co-accused has reduced the amount of restitution
    but has not reduced the proceeds of crime that the appellant has received.

[14]

Regarding
    the $71,500 recovered by some of the victims, it is worth reiterating that these
    funds were not repaid by the appellant but were instead obtained from other
    victims. In these circumstances, as Fairburn JA (as she then was) concluded in
Schoer
,
    at paras. 110-11, a reduction in the amount of the fine in lieu of forfeiture
    is not appropriate:

For
the
reasons given above, I would not
    reduce
the

fine in

lieu

of forfeiture
. I defer
to the
trial judges finding
of
fact that
the
payment
to
Mr. Dollenkamp came from
    commingled funds. It was not
the
appellants
money
that paid Mr. Dollenkamp, but
the
commingled funds
of
complainants and other
victims
not before
the
court that furnished that
    payment.

In

the
context
of
this Ponzi-type scheme,
the
use
of
complainants funds
to
pay complainants does not reduce
the
amount
of
property that constitutes
the
proceeds
of
crime. While paying
the
civil judgment properly reduced
the
amount
of
restitution owing
to
Mr. Dollenkamp,
the
sentencing judge was
    right
to
conclude that it should not
    reduce
the fine

in

lieu of

forfeiture
.
The
value
of

the
property that was
in
control
of

the
appellant is
the
value
to
be attached
to

the

fine
.
In
this case, that is
    $403,750.

[15]

On
    the facts of this case, it is unnecessary for us to consider the Crowns
    position that a sentencing judge has no discretion in fixing the amount of a
    fine in lieu of forfeiture to take into account any amounts paid in restitution.

[16]

For
    the foregoing reasons, the conviction appeal is dismissed as abandoned. We
    grant leave to appeal sentence but dismiss the sentence appeal.

M. Tulloch J.A.

C.W. Hourigan J.A.

Harvison Young J.A.


