)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 1629

CITATION : R. v. Umenwoke, 2013 ONSC 1629 COURT FILE NO.: 12-10000512-0000 DATE: 20130402 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – JOHN UMENWOKE Defendant )) )) )) )) ) ) Robert Wright , for the Crown Pius Okoronkwo , for the Defendant HEARD: March 11-14, 2013 SPIES J. Overview [ 1 ] The defendant John Umenwoke is charged with defrauding Liquid Capital Exchange Corporation (“Liquid Capital”) of a sum of monies exceeding $5,000, between April 1, 2009 and May 5, 2009, contrary to section 380(1) (

a) of the Criminal Code . He reelected trial by judge alone and pleaded not guilty to the charge. [ 2 ] Liquid Capital is in the factoring business and funds accounts receivables of corporations. If Liquid Capital is satisfied, after conducting their due diligence, that their requirements are met they typically advance in the range of 75-85% of the amount of the receivables to the corporation. The receivables are then paid directly to them and when they are collected by Liquid Capital they remit the amount collected less their fees.

Their fee averages between 2.5-3.5% for the first thirty days with the percentage charged increasing thereafter. The Issues [ 3 ] In this case Liquid Capital advanced $75,650.60 in U.S. currency to Unified Solution Providers Inc. (“Unified”) in April 2009, based on information purporting to come from the 95% owner of Unified, Solomon Idiaraba, and on the strength of receivables owing from a company in Ghana, Wifysom Computers Tech. Ltd. (“Wifysom”). [ 4 ] The position of the Crown is that Mr. Umenwoke perpetrated a fraud on Liquid Capital in two ways: 1) by impersonating as Mr.

Idiaraba and creating and signing documents in his name which led to credit checks of that person rather than Mr. Umenwoke and 2) holding out Mr. Idiaraba as a 95% shareholder of Unified when in fact the company was incorporated and 100% owned by his former girlfriend, Kealeboga Mokgwathi and held by her for Mr. Umenwoke. It is alleged that as a result of his deceit the funds were advanced by Liquid Capital and that Mr. Umenwoke received most of those funds. Liquid Capital never recovered any of the money that it advanced and as such was deprived of $75,650.60 US. [ 5 ] At the outset of the trial, Mr.

Wright sought to introduce a statement made by Mr. Umenwoke to police at the time of his arrest but that application was dismissed; see R. v. Umenwoke , 2013 ONSC 1554 . At trial, Mr. Wright called two representatives from Liquid Capital who dealt with the person they believed to be Solomon Idiaraba. They subsequently concluded that the person they dealt with was in fact the defendant John Umenwoke. The Crown also called Karen Carenkorieczny, a representative from the Toronto Dominion Bank who explained the bank records for Unified and Ms. Mokgwathi. Mr.

Umenwoke did not testify and no other evidence was called in his defence. [ 6 ] Mr. Okoronkwo challenged the credibility and reliability of all of the witnesses called by the Crown, save for the bank representative. Mr. Umenwoke’s defence is that there was no deceit and that Mr. Idiaraba is the majority shareholder of Unified, that Mr. Idiaraba was at the meetings with Liquid Capital, that Mr. Umenwoke was the supplier, on behalf of Unified, of computer equipment to Wifysom and that it was for this reason that Mr. Umenwoke received some of the funds advanced by Liquid Capital.

[7] As Mr. Wright submitted, the essential factual issue is whether or not Mr. Umenwoke misrepresented himself both in personand in documents that he signed to Liquid Capital as Solomon Idiaraba. [8] Neither Mr. Wright nor Mr. Okoronkwo provided any law in support of their positions. The law, however, as to whatconstitutes the offence of fraud is settled. I have considered the following cases. [9] In R. v. Théroux, (SCC), [1993] 2 S.C.R. 5, McLachlin J. for the court stated at paragraphs 16 and 17: Speaking of the actus reus of this offence, Dickson J. (as he then was) set out the following principles in Olan [ (SCC),[1978] 2 S.C.R. 1175 at page 150, paraphrase]: (

i) the offence has two elements: dishonest act and deprivation; (ii) the dishonest act is established by proof of deceit, falsehood or “other fraudulent means”; (iii) the element of deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of thevictim, caused by the dishonest act. … “other fraudulent means” in the third category is determined objectively, by reference to what a reasonable person would consider tobe a dishonest act. [10] In R. v.

Zlatic, (SCC), [1993] 2 S.C.R. 29, McLachlin J. held at paragraph 32 that: The dishonesty of “other fraudulent means” has, at its heart, the wrongful use of something in which another person has an interest, insuch a manner that this other’s interest is extinguished or put at risk.

A use is “wrongful” in this context if it constitutes conduct whichreasonable decent persons would consider dishonest and unscrupulous. [11] In Théroux, McLachlin J. also stated at paragraph 24 that: [T]he proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit,falsehood, or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk ofdeprivation).

The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to theanalysis than is the accused’s awareness that the particular acts undertaken constitute a criminal offence. [12] In order to establish Mr. Umenwoke is guilty of the charge of fraud contrary to section 380(1)(

a) of the Criminal Code, inapplying this law and considering the elements of the offence as outlined in a standard jury charge, the Crown must prove beyond areasonable doubt that: (

a) that Mr. Umenwoke deprived Liquid Capital of something of value; (

b) that Mr. Umenwoke’s deceit, falsehood or other fraudulent means caused the deprivation; (

c) that Mr. Umenwoke intended to defraud Liquid Capital; and (

d) that the value of the property exceeded $5,000. The Evidence and Preliminary Findings of Fact The Arrest of John Umenwoke [13] I will start with the arrest of Mr. Umenwoke as it provides reliable evidence as to his address and telephone number one yearafter the alleged fraud. Mr. Umenwoke turned himself in for his arrest on April 6, 2010 after being asked to do so by Detective Entwistle.On arrest he identified himself as John Umenwoke and he brought identification including a driver’s licence and other personaldocuments that confirmed this identity.

Detective Entwistle testified that at the time of his arrest there were no documents found on Mr.Umenwoke that were not in his name. Of course, if Mr. Umenwoke did commit this offence I would not expect him to bringidentification in the name of Solomon Idiaraba to the police station.

[ 14 ] The identification documents provided by Mr. Umenwoke to Detective Entwistle were as follows: • Social Insurance Card - Social Insurance # (“SIN”) is 541 239 812. • Ontario Health Card - The copy is not clear but part of the address for Mr.

Umenwoke is stated to be 50 Tuxedo Court, # 1211, Scarborough (“Tuxedo Court address”). • University Health Network (“UHN”) Card with the Tuxedo Court address and a phone number of 416-283-7037. • TD Canada Trust Business Access Card with the number 589297. • A Costco membership card for John Umenwoke, Computer Reboot Services. • A few of the cards have the signature “John Umenwoke” which I presume is the actual signature of Mr.

Umenwoke. [ 15 ] Detective Entwistle testified that he did numerous checks on computer databases for the name Solomon Idiaraba and did not have any success using his name and date of birth. He could not recall if he saw the name on his Google internet search but stated that there was no driver’s licence in that name and nothing was found in his police checks. [ 16 ] When Detective Entwistle placed Mr. Umenwoke under arrest he filled out a Record of Arrest form. His practice is to base the information in this form on identification provided or he asks the individual.

In this case he was provided with identification but testified that he needed to ask Mr. Umenwoke for his phone number. He was not asked if he saw the imprint of a phone number on the UHN card. Detective Entwistle testified that he was given the number 647-501-6765 by Mr. Umenwoke. I accept this evidence which was not challenged. This is significant as this number is found in the bank records for Unified and other documents provided to Liquid Capital. The inescapable conclusion is that this phone number was at least one of the phone numbers Mr. Umenwoke had at the material time. Mr.

Umenwoke’s Relationship with Kealeboga Mokgwathi [ 17 ] Ms. Mokgwathi testified that she met Mr. Umenwoke, whom she identified in court, at the end of 2006. They were involved in an intimate romantic relationship by 2009. Ms. Mokgwathi testified that Mr. Umenwoke was living at 14 Limevale Crescent (the “Limevale address”) when she met him at the end of 2006 and that he was still living there in 2009. She estimated that she was at that address perhaps once or twice a month.

She did not know of anyone living with him at that address and did not see anything in the residence to lead her to believe that anyone was living there besides Mr. Umenwoke. Ms. Mokgwathi had been to the Tuxedo Court address and testified that she saw that Mr. Umenwoke had a couple of computers there. [ 18 ] Ms. Mokgwathi recalled that Mr. Umenwoke told her sometime between 2007 and 2010; she could not recall when, that Solomon Idiaraba was a business partner who lived in Ghana and came to Toronto from time to time to do business. She testified she has never met anyone named Solomon Idiaraba. Ms.

Mokgwathi denied the suggestion that a lawyer named Henryson Nwakobi introduced her to Solomon Idiaraba. She did not know this lawyer at this time and could not recall seeing the letter from Mr. Nwakobi that was provided to Liquid Capital with the application (see para. 40 below). According to Ms. Mokgwathi, she met Mr. Nwakobi for the first time after the first call from Detective Entwistle advising her to turn herself in. Ms. Mokgwathi confirmed that she has never heard Mr. Umenwoke introduce himself to anyone other than as John Umenwoke. [ 19 ] Ms.

Mokgwathi admitted that she has been living in an apartment since 2009 that Mr. Umenwoke got for her. She was not too sure if the lease was in the name of Solomon Idiaraba and then corrected her evidence to say that it is. She testified that she was not present when the lease was signed; she did not sign the lease with Solomon Idiaraba. Mr. Umenwoke got her the place and helped her move. He had already taken care of the lease. She never discussed the fact that Solomon Idiaraba signed the lease with Mr. Umenwoke. She testified that she pays rent in her name, not in the name of Mr. Idiaraba.

The Incorporation of Unified [ 20 ] Ms. Mokgwathi became aware of the company Unified sometime in the beginning of 2007 when Mr. Umenwoke asked her to “register” the company in her name. Based on the evidence I took this to mean the incorporation of the company. Ms. Mokgwathi testified that when she asked Mr. Umenwoke why he wanted her to do this he said that he was a student and that he had a business before. At the time Ms. Mokgwathi understood Mr. Umenwoke was studying IT at Centennial College. Ms. Mokgwathi admitted that Mr.

Umenwoke did not tell her that a student could not operate a company and that she had no financial pressure to do favours for Mr. Umenwoke. He said he would eventually take her name off the company. He told her the business was going to be fixing and exporting computers. She agreed to incorporate the company for him although she did not do the paperwork. Ms. Mokgwathi testified that she never met anyone else that seemed to be involved in Unified. [ 21 ] Ms. Mokgwathi identified her signature on the incorporating documents that were part of the bank records when the accounts for Unified were opened with TD Bank.

Unified was incorporated as a Canadian corporation on March 9, 2007. Ms. Mokgwathi testified that she did not know she was president of the company. The Ackley address shown in the corporate documents was her address and it also reflects her phone number at the time. It was not suggested to Ms. Mokgwathi in cross-examination that this company was actually her company or that it was incorporated for Mr. Idiaraba. The Records of the Bank Accounts for Unified [ 22 ] Karen Carenkorieczny is a production order specialist with TD Global Security and identified the TD bank records of Unified introduced into evidence.

I am satisfied from her evidence that the bank records produced for a Canadian account # 5210833 and a U.S. account # 7302449 both held in the name of Unified Solution Providers are true copies of the records held by the bank. These documents were entered into evidence as business records pursuant to

section 29 of the Canada Evidence Act . Mr. Okoronkwo did not dispute this.

[ 23 ] Ms. Mokgwathi testified that Mr. Umenwoke asked her to be the signatory on the bank account for Unified. She had no present recollection of going through the process of opening the account at the bank save that she was with Mr. Umenwoke and she was able to confirm her signature on the documents. She didn’t even know if there were one or more accounts. [ 24 ] Ms. Mokgwathi testified that when she went to the bank with Mr. Umenwoke she would sign things at his request and that he asked her to sign many documents. She knew she was signing for Unified and she understood from Mr.

Umenwoke that she was the signing authority for the bank account. She was not given a debit card to the accounts. She was not sure if Mr. Umenwoke had one or not but she was positive that Mr. Umenwoke had the cheque book and that it was never in her possession. She had no access to the Unified accounts on the internet and never did any internet transfers from one account to another. Ms. Mokgwathi testified that she never took money out of the bank accounts for Unified. [ 25 ] Ms. Mokgwathi could not recall how often she signed cheques at the request of Mr. Umenwoke.

He asked her to sign cheques either when she was at work or at home. Ms. Mokgwathi testified that a lot of times Mr. Umenwoke would give her blank cheques to sign. He would say he needed her to sign a couple of cheques because he had to conduct some business. She signed the cheques that Mr. Umenwoke brought to her and asked her to sign. He told her she was the signatory on the account and so she felt obligated. She also said that she trusted him. At some point she felt it was an inconvenience as Mr. Umenwoke would travel to her house or her work to have her sign cheques.

She told him that she didn’t want to be a signatory anymore. He told her that a woman’s handwriting would look better and that she was the only one who was the signatory. She didn’t say but I presume this means that she carried on. [ 26 ] Ms. Mokgwathi testified that she never got any money from Mr. Umenwoke for doing things for his business. [ 27 ] The documents opening the Canadian currency account for Unified provide that the account was opened on December 5, 2008 when the small business banking business account opening checklist and other documents were signed by Ms. Mokgwathi. Ms.

Mokgwathi also signed the signature card and was stated to be the president of Unified. She was the only signing officer for the company and all cheques were to be signed by her. A borrowing authority resolution in the name of Unified was provided to the bank that was dated December 5, 2008, signed by Ms. Mokgwathi as president. A certified true copy of the Certificate of Incorporation for Unified was also included in the account opening information. That document states that the company was incorporated on March 9, 2007, that Ms.

Mokgwathi was the incorporating director and that her address was the Limevale address. In addition there is a document headed Information Regarding the Registered Office and the Board of Directors which states the registered office address of the company as well as the mailing address to be the Limevale address. The telephone number for Ms. Mokgwathi is set out as the number that Mr. Umenwoke had at the time. She is listed as the only Director of Unified. [ 28 ] The incorporating documents do not set out the shareholders of Unified but no name is mentioned in the documents save for Ms. Mokgwathi.

The bank’s Officers and Directors enquiry form shows Ms. Mokgwathi as the president of Unified owning 100% of the company. [ 29 ] Ms. Carenkorieczny testified that with respect to the bank’s customer information enquiry forms, the bank policy is to look at a driver’s licence, bill or some other identification to ensure the address presented is a legitimate address. A customer information enquiry document for Mr. Umenwoke shows his address as the Tuxedo Court address, with a home phone number of 647-501-6765; the number he provided to Detective Entwistle, and a business number of 888-700-2087.

I raised a concern with Mr. Wright as to whether or not the information as to Mr. Umenwoke’s address and phone number in the bank’s records could be accepted as true as it would have been information the bank relied upon but was provided by someone else. It became unnecessary to decide that evidentiary issue as I gave Mr. Wright the ability to recall Detective Entwistle before he closed his case and he gave the evidence that I have already referred to. [ 30 ] Ms. Mokgwathi was asked again about the Tuxedo Court address as shown on the customer information enquiry form.

She knew this address from sometime in 2007 or 2008 as Mr. Umenwoke’s business apartment. No one was living there and he had computers there. She did not recognize the phone number on this document but recognized the email as belonging to Mr. Umenwoke. [ 31 ] The Customer Information Enquiry form for Unified shows the Limevale address and a phone number of 416-283-7037 which is the number on Mr. Umenwoke’s UHN card. [ 32 ] A document entitled “Related Customers Enquiry” shows Mr. Umenwoke as a related customer but does not set out how. That document also shows Ms. Mokgwathi as 100% owner of Unified. Ms.

Carenkorieczny testified that the “screen hit” on the business account for Unified shows Mr. Umenwoke as being “related” to the accounts held by Unified at the bank but does not show how. She was not able to provide any further information in this regard. There was no information that Ms. Carenkorieczny was aware of that shows that Mr. Umenwoke had his own debit card to the accounts held by Unified at the bank. [ 33 ] There is one cheque in the bank records for Unified’s Canadian account drawn on a President’s Choice Financial account.

In the printed portion of the cheque is the name Solomon Idiaraba at the Limevale address. This cheque is dated April 21, 2009, in the amount of $200 payable to Unified and the signature appears to be the one associated with Mr. Idiaraba. On April 20, 2009, a cheque on a different President’s Choice Financial account is made payable to Unified in the amount of $210. The printed portion of this cheque states the name John Umenwoke at the Tuxedo Court address and appears to have been signed by Mr. Umenwoke. [ 34 ] In cross-examination Mr. Okoronkwo repeatedly suggested to Ms.

Mokgwathi that it must have been Solomon Idiaraba who asked her to sign the cheques for Unified; seemingly because he was a 95% owner of the company. It appeared that Mr. Okoronkwo seemed to assume that Ms. Mokgwathi knew she was only a 5% owner of Unified but she was never expressly asked this and no records suggesting this were put to her. She was firm that it was always Mr. Umenwoke who brought cheques to her for her signature. Application from Unified to Liquid Capital [ 35 ] Mr.

Birnbaum, the Vice President of Liquid Capital, testified that he recalled receiving an email from a person named Solomon Idiaraba but he was not able to respond. He then received a second email or telephone call and as a result called Mr. Idiaraba

and invited him to their office. Mr. Birnbaum recalled meeting with the person he believed was Mr. Idiaraba at Liquid Capital on or about April 9, 2010. He had never met this person before. He testified the meeting lasted 30-45 minutes and that he met with this person alone. He confirmed again in cross-examination that it was only the two of them. Mr. Birnbaum testified that when he first met with Mr. Idiaraba he did not ask him for identification.

Nothing that happened during the meeting led him to believe that the person he was meeting with was not the person who had previously spoken to him on the telephone. [ 36 ] According to Mr. Birnbaum, Mr. Idiaraba told him that his business was supplying computer equipment to a company in Ghana and that they had receivables just under $100,000 that were insured with Export Development Canada (EDC). Mr. Birnbaum said that as a matter of practice Liquid Capital does not fund receivables outside North America that are not insured. [ 37 ] It was suggested to Mr. Birnbaum in cross-examination that Mr. Idiaraba and Mr.

Umenwoke attended the Liquid Capital offices at the time of the first meeting when the Liquid Capital application form was provided. Mr. Birnbaum denied this and testified that he was sure only one person came. He was then taken to his preliminary hearing evidence on July 12, 2012. When Mr. Birnbaum was asked then if two people came to the initial meeting he answered “Not to my recollection”. This response was not in my view inconsistent with his evidence at trial. Mr. Birnbaum testified that he only ever met the person who purported to be Mr. Idiaraba.

He denied meeting anyone who identified himself as John Umenwoke. [ 38 ] Ms. Parent, a law clerk and an employee of Liquid Capital at the material time, testified that she was at the initial meeting with Mr. Idiaraba and Mr. Birnbaum for five to ten minutes. This must have been at the end of the meeting as Ms. Parent recalled that Mr. Idiaraba shook their hands and thanked them for the opportunity and for believing in him. Ms.

Parent testified that she was always introduced to everyone because she drafted all the documents. [ 39 ] On April 14, 2009, Liquid Capital received a 40-page fax purporting to be an application for Accounts Receivable financing for Unified from Solomon Idiaraba to the attention of Brian Birnbaum. The fax coversheet shows the Limevale address as the address for Unified with a phone number of 647-501-6765 for both Unified and for Mr. Idiaraba; i.e. Mr.

Umenwoke’s phone number. [ 40 ] A cover letter with the application dated April 14, 2009 from Unified provided information about the company including the following: • Unified was incorporated by Kealeboga Mokgwathi and Solomon Idiaraba. • John Umenwoke is the information technology professional who was hired under special arrangement with the corporation to serve as a full-time IT Project Manager. • The company is operating out of the Limevale address which is the home of Mr. Idiaraba “the majority shareholder and current President”. • Mr. Idiaraba and Mr.

Umenwoke work full-time for the company. • The company also operates a small computer lab at 50 Tuxedo Court, Unit 1211, Scarborough, Ontario. • Mr. Idiaraba has selected John Umenwoke to manage and direct all the IT projects to be undertaken by the corporation. [ 41 ] The application is a Liquid Capital form that has information written in and is purportedly signed by Mr. Idiaraba as president and Ms. Mokgwathi as secretary/treasurer. The application contains the following statements: • The trade name for Unified is Computer Reboot. • Mr. Idiaraba is a 95% owner and Ms.

Mokgwathi as secretary of the company has a 5% ownership of Unified. • The phone number for Unified is stated as 416-916-6765 but the number for Mr. Idiaraba is shown as Mr. Umenwoke’s number at the time. • In the

section of the application headed “Supplier Information”, it is not clear what is set out there but Mr. Umenwoke’s name is stated three times as supplying computer products. [ 42 ] Attached to the application are the following documents: • Unaudited financial statements of Unified dated April 10, 2009. • A letter dated April 9, 2009 to the attention of Mr. Birnbaum of Liquid Capital from Henryson Nwakobi which states that he is the solicitor for Unified, that Mr. Idiaraba is the majority shareholder as well as the president of the corporation and that Ms.

Mokgwathi is also a shareholder and presently the company secretary. He enclosed a certified copy of what he called the company profile and that document shows the mailing and registered office address for the company, as the Limevale address to the attention of Ms. Mokgwathi. The sole director of the company is stated to be Mr. Idiaraba. • A resolution from the board of directors of Unified dated March 10, 2008 appointing Mr. Idiaraba, the majority shareholder, as president and Ms. Mokgwathi as secretary. This document is purportedly signed by Mr. Idiaraba and Ms.

Mokgwathi. • A letter dated February 20, 2007 which purports to appoint Mr. Umenwoke as Unified’s IT Project Manager to work directly with the president of the company, Mr. Idiaraba. The letter states that Mr. Umenwoke is going to “convert” his company, Computer Reboot Services International Inc., to the services of Unified. This letter is purportedly signed by Ms. Mokgwathi as secretary of Unified and by Mr. Umenwoke as the IT Project Manager. • The certificate of incorporation of Unified which appears to be the same as the one in the TD Bank records.

• A document headed Information Regarding the Registered Office and the Board of Directors which appears to be the same as the one in the TD Bank records. This document is not dated. • A letter dated February 20, 2009 from W.C. Umezurike, the president of Wifysom, to Mr. Idiaraba. The letterhead of the company suggests it is in Ghana. The letter states that Wifysom took physical delivery of the goods shipped in the amount of US $98,280 and that their bank had been instructed to effect payment on June 23, 2009 in agreement with Unified’s invoice terms.

A request was made to notify the company when the balance of the consignment was shipped. • A sales invoice from Unified to Wifysom for a total invoiced amount of $98,280 purportedly signed by Mr. Idiaraba as president on February 20, 2009. • A bank report of Wifysom to the attention of EDC provides that Wifysom has been a client of the Bank of Ghana for three years with an average account balance of $183,000. • An EDC Coverage Certificate for a Small Business Accounts Receivable policy issued January 26, 2009 and effective January 1, 2009. The fee appears to be $250 and EDC’s maximum liability is $125,000.

The address for notices for Unified shows Mr. Idiaraba with the Limevale address and the phone number 647-501-6765; Mr. Umenwoke’s phone number. • An account receivable aging document dated April 9, 2009 purporting to set out the receivables of Unified. They total $159,853.20. The receivable from Wifysom was represented to be in the amount of $126,000. [ 43 ] Mr. Birnbaum testified that the application form was sent into his office by fax and was not completed in the office or signed in the office. In cross-examination Ms. Parent testified that she did not recall being present when the application was signed.

She was taken to her evidence at the preliminary inquiry on July 13, 2012 when she testified that she was present when it was signed. To explain this inconsistency Ms. Parent testified that she might have remembered it at the time she gave evidence at the preliminary inquiry but she doesn’t remember it now. When asked again she testified that she could not recall if the application was signed in their office or just handed over to her. [ 44 ] Since there seems to be no dispute that the application was faxed in its entirety, in my view it is more likely that it was signed before it was faxed to Liquid Capital.

It makes no sense that someone would fax the entire package and then come in to sign the application. Furthermore, the application purports to be signed by Ms. Mokgwathi and it was never suggested to Ms. Mokgwathi or Ms. Parent that she attended the offices of Liquid Capital for the purpose of signing the application. I did not find this inconsistency to impact on Ms. Parent’s credibility in any event. She dealt with it fairly and clearly to the best of her ability. [ 45 ] In cross-examination Ms. Mokgwathi was taken to the signature that purports to be Solomon Idiaraba’s at the end of the application.

She signed this document and her signature appears next to his. Ms. Mokgwathi testified that she saw this signature “right now” in other words at trial and added that “as stupid as it may seem” a lot of times she didn’t read the documents; she just signed them. She said she probably didn’t read the application before she signed it. She did not recall reading it word for word. She could have glanced through it but does not recall seeing the name Solomon Idiaraba at the time.

I note that there is no evidence that the signature of Solomon Idiaraba was on the form when she signed the document in any event. [ 46 ] The description of the business, the market of the business and the capital requirements set out in the application were similar to what Mr. Idiaraba had told Mr. Birnbaum. Mr. Birnbaum testified that he understood Mr. Idiaraba to be the major shareholder, President and CEO of Unified. He did not meet with Ms. Mokgwathi, although he knew the application showed her as a 5% owner.

He did not find the supplier information important and so did not consider that but does recall being told at some point or reading somewhere that Mr. Umenwoke was going to do some of the installations or other work for the company and that he was an employee of the company. [ 47 ] Mr. Birnbaum testified that a $500 fee was to be paid by Unified so that they could process the application. Cheque # 010 dated April 21, 2009 in the amount of $500 made payable to Liquid Capital and signed by Ms. Mokgwathi was returned NSF. Mr. Birnbaum notified Mr. Idiaraba and told him how upset they were. Mr.

Idiaraba told him that they would get him a money order which he did. No details were provided as to whether this contact was by email or telephone. Liquid Capital’s Due Diligence [ 48 ] Mr. Birnbaum testified that when they receive applications with the required information they review that information, do a number of checks and, based on the information received, decide whether or not they are going to approve the client for funding based on a number of considerations. The primary consideration is the receivables themselves.

To make sure that they are good receivables they check out the background of the owner of the business, do PPSA searches to ensure no one else has lien rights on the receivables as well as bank searches. Mr. Birnbaum testified that the fact that Unified had employees was important but the employees of a company have little bearing on the decision whether to fund receivables unless they handle cash. No computer search was done on the name Computer Reboot to his knowledge. They did do a credit check on Mr. Idiaraba. [ 49 ] Ms. Parent testified that she did the credit checks for all applications.

Her procedure was to do a corporate search on the company itself and a credit check on the principals of the company. She usually did a Google search as well and checked out the website of the company. She testified that she did the credit checks and corporate search in this case. She obtained a corporate profile report which I note was different than the one provided with the application. It only referred to Ms. Mokgwathi at the Limevale address. Ms. Parent recalled that she determined that Unified was a valid, subsisting company and that the only question she had was that the name of the owner appeared as Ms.

Mokgwathi. She testified that when she questioned this she was told that this had been changed and that Mr. Idiaraba was the 95% owner of the company. She believed that the corporate documents had been changed but not yet been filed. She did not recall if she saw the corporate documents or if she saw any corporate documentation showing Mr. Idiaraba as an owner. [ 50 ] A consumer report check requested by Ms. Parent for the name Solomon Idiaraba at the Limevale address with a SIN number

of 542 212 303 dated April 16, 2009 did result in a report providing current and former addresses for Mr. Idiaraba and credit inquiries. Ms. Parent testified that she did not see any areas of concern in this credit report. In cross-examination Ms. Parent admitted that when she did a credit check for Mr. Idiaraba she found that he existed and that his SIN number was on the credit report. She could not recall if she did a check on the name Computer Reboot or not but saw it was associated with Unified as Unified was stated to be “also known as” Computer Reboot.

This document was tendered solely for the purpose of explaining why Liquid Capital was satisfied with Mr. Idiaraba’s credit rating. However, the fact that a report was completed does suggest that there was a person with th name Solomon Idiaraba and social insurance number but beyond that does not contain other information that is admissible. [ 51 ] A consumer report was also requested by Ms. Parent for Ms. Mokgwathi at an address of 32 Arkley Crescent, in Toronto. That report dated April 16, 2009 sets out information with respect to Ms. Mokgwathi.

Again, the admissibility of this report was simply to establish what was relied upon by Liquid Capital. Ms. Parent testified that this report showed that Ms. Mokgwathi had one account in collection but she was not concerned about this since she understood Mr. Idiaraba was the 95% owner. [ 52 ] Ms. Parent was never asked to run a credit report of Mr. Umenwoke. His name was not a factor in the initial application stage as far as she was concerned. Ms. Parent did not review the supplier information on the application form as that is obtained for the purposes of another department.

She testified that at the application stage Unified Solutions was not shown as also being known as Computer Reboot. This came at the execution stage of the documents on April 21, 2009. [ 53 ] Based on the application Ms. Parent believes Mr. Idiaraba owned a house but she did not do a title search at that time. She believes this was done when the problems arose but she did not do it herself. Mr. Birnbaum testified that he has never seen a document showing title in the name of Mr. Idiaraba to a house. The Execution of the Factoring Agreement and Other Documents [ 54 ] Mr.

Birnbaum testified that the agreement and other required documents were not signed in his presence but rather the presence of Ms. Parent. It is standard procedure to have documents signed in the presence of an officer of Liquid Capital Corp. but he did not witness the signature of these documents. [ 55 ] Ms. Parent testified that she and a partner of Liquid Capital by the name of Saul Roter were present at a meeting with Mr. Idiaraba when the necessary documents were executed that took place not long after April 16 th . Ms.

Parent testified that she recognized the person who signed the documents as the same person that she met with Mr. Birnbaum. Mr. Birnbaum believed that he saw Mr. Idiaraba for a moment at this time but he did not attend this meeting. [ 56 ] Ms. Parent testified that the documents would have been signed in the boardroom and she stated that it usually takes 15-30 minutes to execute all the documents. Again there was no issue with the lighting in this room. To her recollection Mr. Idiaraba looked exactly the same as he had on the first occasion when she met him. She recognized him immediately. [ 57 ] When Ms.

Parent was asked if she requested identification from Mr. Idiaraba she testified that she typically asked for picture ID and that this was her responsibility. Her recollection is that she did get Mr. Idiaraba’s driver’s licence. It was her practice to compare the photo on that document to the person in front of her to satisfy herself that it’s the same person. Ms. Parent testified that to her recollection she received a photo ID for Mr. Idiaraba and that she made a copy of it. She did not do this for Ms. Mokgwathi. She testified that anything photocopied would be kept in the files at Liquid Capital. When Mr.

Birnbaum was asked if they received any form of ID from Mr. Idiaraba, he said “no” and that they did not have his driver’s licence or passport, only his SIN number. [ 58 ] All of the documents signed with a date of April 21, 2009 show Unified as Unified Solution Providers Inc. o|a Computer Reboot Services. The following documents were signed, all purportedly by Solomon Idiaraba as the president of Unified on that date: 1. Full Factoring Agreement (“Agreement”). 2. Assignment of book debts. 3. General security agreement. 4. A personal guarantee from Solomon Idiaraba in favour of Liquid Capital Exchange Corp. 5.

A PPSA acknowledgment dated April 22, 2009. 6. An undated document entitled Directors and Officers of Unified which sets out Mr. Idiaraba as president with his specimen signature. It lists Ms. Mokgwathi as corporate secretary but does not have her specimen signature. The document was prepared for the signature of Ms. Mokgwathi but the signature above her name appears to be the one associated with Mr. Idiaraba. 7. The resolution of the board of directors of Unified authorizing the company to execute the Agreement. [ 59 ] Ms. Parent testified that she witnessed the person she believed to be Mr.

Idiaraba signing documents # 1 through 5 and # 7 as listed above. She was not sure about document # 6 but confirmed it was given to her on April 21 st . Where the Money Advanced Went [ 60 ] On May 5, 2009 a deposit was made in the amount of US $75,650.60 by wire from Liquid Capital Exchange Corp. into the U.S. account of Unified. Mr. Birnbaum testified that he received information as to where to wire the money from Mr. Idiaraba but gave no particulars as to how that information was received. On the same day Ms. Mokgwathi signed cheque #011 on Unified’s Canadian account in the amount of $16,000 payable to cash.

She admitted signing the cheque but testified that the writing on the cheque is not hers. I accept that evidence as the writing on the cheque is nothing like her writing on cheques she admits preparing.

[ 61 ] On May 6, 2009, US $14,500 was transferred via the internet from the U.S. account to the Canadian account of Unified. That translated into $16,760.55 Canadian when deposited to Unified’s Canadian account. Cheque #011 was presented to the bank on that date: the back of the cheque is endorsed by a signature that states John Umenwoke for Computer Reboot. The only reasonable inference to draw from this transaction is that $16,000 in Canadian currency from the money advanced by Liquid Capital was received by Mr. Umenwoke. [ 62 ] Mr.

Wright also argued that it was significant that the cheque was not cashed until May 6, 2009 as it would appear from the bank records that even though it was dated May 5, 2009, the transfer did not occur until the 6 th . He suggested this means the person who cashed the cheque, whom he alleges was John Umenwoke, had inside knowledge and was able to avoid an NSF cheque. I accept that there is merit to this submission. As I will come to I accept the evidence of Ms. Mokgwathi and she testified she had no access to the Unified accounts on the internet. It must have been Mr.

Umenwoke who did these internet transfers. [ 63 ] On May 7, 2009, a further US $4,000 was transferred via the internet from the U.S. account to the Canadian account of Unified. This translated into $4,574.40 Canadian deposited to the Canadian account. A cheque drawn on Unified’s Canadian account dated May 7, 2009 in the amount of $4,000 was signed by Ms. Mokgwathi and made payable to Computer Reboot SVS, International Inc. Ms. Mokgwathi had heard the name Computer Reboot before; Mr. Umenwoke told her it used to be his business before. She does not recall any conversation concerning her signing this cheque.

The endorsement on the back of the cheque shows a signature for Computer Reboot of John Umenwoke. The only reasonable inference is that as a result of this transaction Mr. Umenwoke’s business; Computer Reboot, received $4,000 in Canadian currency of the money advanced to Unified by Liquid Capital. [ 64 ] On May 25, 2009 a $45,000 certified cheque payable to John Umenwoke was debited from the U.S. account. Ms. Mokgwathi admitted that this cheque bears her signature but she testified that the rest of the handwriting on the cheque was not hers.

I accept that evidence as the writing on the cheque is nothing like her writing on cheques she admits preparing. Ms. Mokgwathi did not recall any conversation with Mr. Umenwoke about this cheque. The endorsement on the back of the cheque is a signature in the name of John Umenwoke. As part of the bank records there is also a receipt which establishes that the $45,000 cheque was brought to the bank and it was certified by a customer with the signature John Umenwoke. According to the evidence of Ms.

Carenkorieczny, the certification of this cheque would have had to have been confirmed by the accountholder, namely Ms. Mokgwathi. The inescapable conclusion is that as a result of this transaction US $45,000 from the money advanced by Liquid Capital was received by Mr. Umenwoke. [ 65 ] A cheque dated May 26, 2009 in the amount of $1,807 on the U.S. account of Unified, made payable to Northwood University, was signed by Ms. Mokgwathi. She admitted signing this cheque and stated that the writing on the cheque is hers; Mr. Umenwoke asked her to write the cheque out in this way.

The re line on this cheque states “for: John Umenwoke # 000779619”. It was returned NSF and replaced by another cheque in the same amount drawn on the U.S. dollar account for Unified dated June 15, 2009. Ms. Mokgwathi signed this cheque but the handwriting on the cheque is not hers. That cheque also shows this amount as being a payment to Northwood University for John Umenwoke. Ms. Mokgwathi did not recall signing this cheque or having any conversation with Mr. Umenwoke about it. She did not take it to the bank to certify it. There is a receipt for the certification of this cheque but Ms.

Mokgwathi denied that the signature was hers. I accept that evidence as the signature is not even close to her usual signature as I have observed it in the various documents that she admits signing. It looks very much like the way Mr. Umenwoke signs his name. Given the way in which Mr. Umenwoke instructed Ms. Mokgwathi to make out the cheque, I find that as a result of this transaction US $1,807 from the money advanced by Liquid Capital was received by Northwood University for the benefit of Mr. Umenwoke. [ 66 ] Ms.

Mokgwathi testified about other cheques that she admitted signing but none of those are relevant to the issues I must determine. [ 67 ] The TD Bank also produced deposit account transaction enquiries for specific ATM machines and the transactions have unique identifying numbers and times. Apparently whenever a customer uses certain ATMs from the TD Bank to make a transaction their face is automatically recorded by a video camera. This is done for all camera equipped ATM machines.

For each of these deposit account transaction enquiries there is a document included entitled “Incident Report” which shows a photograph of the person at the ATM machine associated with the same transaction. These were introduced for the Unified bank accounts. Some of these photos are not very clear. Others are; the clearest photos are associated with transaction 8201 and transaction 9616. All of the images appear to show the same man even in cases where it is difficult to make out the person. The same coat is generally worn as is a baseball cap and gold- rimmed glasses.

Upon comparing the photographs with the face of Mr. Umenwoke, I am satisfied that he is the person shown on the video photographs. I note that he wore gold-rimmed glasses during the trial. Steps Taken by Liquid Capital to Collect the Receivables [ 68 ] Mr. Birnbaum testified that he confirmed with Wifysom that they should be paying Liquid Capital directly and they accepted those terms.

No information as to how or with whom he communicated with was given nor was any copy of the communication, if in writing, entered into evidence. [ 69 ] The due date of the receivable in question from Wifysom was June 23, 2009 and Mr. Birnbaum testified that they sent a letter to the customer and received a return email advising that the product had not yet been installed and that they needed more time to pay. They had very little choice and agreed to wait for payment. When by the September 28, 2009 deadline payment had still not been made, Mr. Birnbaum sent an email demanding payment to Wifysom and to Mr.

Idiaraba. Mr. Idiaraba responded that he was travelling and would visit on his return. Mr. Birnbaum did not receive a response from the email to Wifysom but ultimately received a letter from the company advising him that they had they had received the goods in satisfactory condition and had paid Mr. Idiaraba directly. These emails and this letter were not introduced into evidence and there is no evidence as to whether or not Liquid Capital still has these documents. They would presumably constitute inadmissible hearsay in any event. [ 70 ] Mr. Birnbaum testified that steps were taken to attempt to locate Mr.

Idiaraba but once they realized the receivable was not going to be collected one of his partners took over those efforts. As I understand the evidence, in September 2009 demand letters were sent to Unified and Mr. Idiaraba.

[ 71 ] Ms. Parent said she was somewhat involved in the attempt to get the receivable paid although it was not her job to collect it. Ms. Parent testified that she did do some investigation and was able to get a copy of the waybill to determine if the computers had been delivered to the location where they were intended. She said the waybill was from DLS or UPS. She also did a Google search on the company in Ghana. However, when she tracked the shipping number it would not come up in the system. She called the courier company in question and was told there was no record of the shipment.

All of this evidence was very vague and in any event was hearsay evidence and not otherwise proven. [ 72 ] Liquid Capital retained a lawyer in Ghana and decided on the advice of that lawyer not to sue Wifysom. Mr. Birnbaum testified that they had obtained default judgment against Mr. Idiaraba in the last two weeks before trial. He was sued under his personal guarantee. They did not sue EDC. This was based on legal advice and was not a matter he was personally involved with. [ 73 ] Mr. Birnbaum testified he believed Mr. Idiaraba had a house but they did not register a caution against the house.

They have not done a creditor-debtor examination yet. [ 74 ] Mr. Birnbaum testified that Liquid Capital has not recovered the money advanced. This evidence was not challenged. The Identification Evidence [ 75 ] Ms. Parent testified that in September 2009 she was doing Google searches on the name Solomon Idiaraba and somehow Mr. Umenwoke’s name kept coming up with his. A Facebook page was found by Ms. Parent in the name of John Umenwoke. She identified that document in court. It has a picture of a black man that looks like the defendant before the court. Some of Mr.

Umenwoke’s friends include Wilson Chike Umezurike which is the same name of the person that executed the letter from Wifysom. [ 76 ] Ms. Parent testified that when she found this Facebook page she thought it was a picture of Solomon Idiaraba. She testified that she also did a Google search on Wifysom and nothing came up. She considered this a big red flag. When she did a computer search on the name “Computer Reboot” the only name she found associated with that company was Mr. Umenwoke, not Mr. Idiaraba. She could not recall if there was a webpage but did remember the contact was Mr.

Umenwoke. [ 77 ] At this point Liquid Capital hired a private investigator. Sometime in November 2009, Ms. Parent was shown an image on a CD obtained by the private investigator of a person selling a vehicle. She recognized this person as the person introduced to her as Mr. Idiaraba. Although it can not be determined if it is exactly the same image, Ms. Parent identified an image from the surveillance at trial as Mr. Umenwoke. The image is not clear but it does appear to be an image of Mr. Umenwoke. [ 78 ] Mr. Birnbaum recalled being shown a Facebook page by Ms.

Parent in October 2009 and concluding that the picture was of Solomon Idiaraba. Mr. Birnbaum also had some recollection of being shown some surveillance images and believing that the gentleman who was around a car appeared to be the same as the gentleman who identified himself as Mr. Solomon Idiaraba. [ 79 ] Both Mr. Birnbaum and Ms. Parent also testified that they saw Mr. Umenwoke at the preliminary hearing on July 12, 2012. [ 80 ] At trial, both Mr. Birnbaum and Ms. Parent were asked if the person who identified himself as Mr. Idiaraba was in court. They both confirmed that he was and identified Mr.

Umenwoke as the person they knew as Mr. Idiaraba. At this point Mr. Umenwoke was sitting next to his counsel, Mr. Okoronkwo, who is also a black man and of course was wearing his legal robes. There were no other black men in the courtroom. In these circumstances the in court identification is not of much weight. Analysis Credibility Assessments [ 81 ] Mr. Okoronkwo submitted that the evidence of Mr. Birnbaum and Ms. Parent is not reliable. Since they could not agree on whether or not they were both present at the first meeting, they could also be wrong about whether one or two people were present.

The first problem with this submission is that it was never suggested to Ms. Parent that she was introduced to anyone besides Mr. Idiaraba. Furthermore, I do not find the inconsistency in the evidence of Mr. Birnbaum and Ms. Parent as to whether or not she came in for part of this meeting to be troubling. It does not impact the credibility or reliability of their evidence in my view. Although Mr. Birnbaum’s evidence was at odds with the recollection of Ms. Parent, her evidence was never specifically put to Mr. Birnbaum.

In particular he was not asked if it was possible that she came in at the end of the meeting or whether or not he was aware of the practice or her practice to introduce herself to possible clients. This may well have jogged his memory. Ms. Parent would have better recall of this matter as she said it was the practice that she be introduced to the potential client. This makes sense as she was going to do the due diligence and then meet with the client to execute documents. It is not surprising that Mr. Birnbaum might forget that he had introduced her to the person he believed to be Mr.

Idiaraba at the first meeting especially as she testified she was only at the meeting for a few minutes. Furthermore, I note that with respect to the second meeting Ms. Parent testified to that she had with the person who identified himself as Solomon Idiaraba, it was never suggested to Ms. Parent that two people were present. [ 82 ] I find that the evidence of both of these witnesses was credible. Their evidence was internally consistent and otherwise externally consistent.

Their demeanour did not change during cross-examination and they both appeared to be doing their best to give their best recollection of the events in issue. My conclusion is in fact strengthened somewhat by the discrepancy in their evidence which suggests they have not colluded in any way in giving evidence. This was never suggested to them but could have been possible. The real issue then is the reliability of their identification evidence which I will come to. [ 83 ] Mr. Okoronkwo also submitted that Ms. Mokgwathi’s evidence was not credible.

He argued that she had several opportunities to give statements to police after she was charged. It was suggested to her by Mr. Okoronkwo that she had just given the testimony that I heard in order for her to “save herself”. She denied this. If I understand his submission, he suggested the fact she did not give a statement until the summer of 2012 meant her evidence was fabricated. I do not accept that submission.

[ 84 ] Ms. Mokgwathi was contacted by Detective Entwistle in early April 2010 and told that she was going to be charged with fraud concerning Unified. She had a conversation with Mr. Umenwoke immediately after that call and told him that the business had done some kind of fraud and that she could not believe he had gotten her into that kind of trouble. He told her not to worry and to calm down. He told her that he didn’t know what it was about and that no one had called him. He called her back a half hour later to say he had just received a call from Detective Entwistle.

He wanted to go into the station at the same time but she went on her own. [ 85 ] Ms. Mokgwathi contacted a lawyer prior to going to the police station. She recalled being cautioned by the lawyer about not saying things as what she said could be used against her. At the station right after Ms. Mokgwathi was charged, she was asked certain questions that she answered but she testified that she wasn’t asked all of the questions she was asked at trial. She was cross-examined on the basis the police gave her an opportunity to say everything and that she did not tell them what she was now testifying to in court.

She repeated that she answered the questions she was asked. She cannot be faulted for not giving a full statement to police at this time. That was her right. [ 86 ] Ms. Mokgwathi was released from the station on the day of her arrest. After that the only conversation she had with Mr. Umenwoke was with the lawyer who at that time was acting for both of them. She stated that Mr. Umenwoke just kept apologizing and saying he was sorry he had put her in this mess. [ 87 ] Ms. Mokgwathi’s charges were withdrawn in July 2012 after she gave a statement to police.

She spoke to a lawyer before giving the statement and it was the lawyer that arranged for her to do so. Ms. Mokgwathi testified that no promises were made to her before she gave her statement. That evidence was not challenged and I accept it. There is, therefore, no evidence that her evidence ought to be discounted because this statement was not made earlier or because her charges were withdrawn. [ 88 ] Mr. Okoronkwo submitted that I ought not to believe Ms. Mokgwathi’s evidence that she did not know Mr. Idiaraba or that she was not present when her lease was signed by him. I do not accept that submission.

Given her relationship with Mr. Umenwoke at the time, it is not improbable that Mr. Umenwoke might choose to sign the lease for her and if he signed as Mr. Idiaraba that could be explained by the fact that this is essentially what is alleged that he did with the documents provided to Liquid Capital. [ 89 ] Ms. Mokgwathi has no criminal record and in my view she was a very fair witness. She seemed to have a good recollection of the things that one would expect her to recall and where she could not recall that made sense. She was naïve in agreeing to sign documents for Mr.

Umenwoke incorporating Unified and for the company’s banking. However, her evidence as to why she did so was believable - she was in an intimate relationship with Mr. Umenwoke, he had an explanation for the request, and she trusted him. She received no financial gain from executing these documents and cheques which she clearly must have done at the direction of Mr. Umenwoke. For these reasons I found Ms. Mokgwathi’s evidence credible and reliable. Has the Crown Proven Fraud? [ 90 ] I agree with Mr. Wright that the key issue that I must resolve in this case is identity: did Mr.

Umenwoke represent himself to be Solomon Idiaraba in his dealings with and in the documents provided to Liquid Capital. [ 91 ] I have the evidence of both Mr. Birnbaum and Ms. Parent who identified Mr. Umenwoke in court as the person they met with who indentified himself as Solomon Idiaraba and the person who signed the documents in that name. [ 92 ] I am satisfied that Mr. Birnbaum honestly believes that Mr. Umenwoke is the man he met with in early April 2009 for a 30-45 minute meeting who represented himself as Solomon Idiaraba.

He met with this man in the company boardroom which is lit with fluorescent lights which provide good lighting. There are also windows along one side of the boardroom. He was sitting across the table from this person. They spoke about a proposed funding application which is a serious matter that would have required his attention. [ 93 ] Mr. Birnbaum described the man that he met with as being black, of medium build; between five foot seven inches and five foot ten inches tall, about 45-50 years old and he thought he was bald. He could recall no other distinguishing characteristics.

To the extent I was able to discern this during the trial, this description fits Mr. Umenwoke although he was only balding in the middle. He could have had a shaved head for the meetings with Liquid Capital so that is not material. Mr. Birnbaum also believed that he saw the man he believed to be Mr. Idiaraba for a moment when he came to the office to sign the documents later in April 2009 although he did not attend this meeting. [ 94 ] In addition in September 2009, only a few months later, Mr. Birnbaum met the person he now alleges is Mr.

Umenwoke, he was shown a Facebook page with a picture of John Umenwoke and when he saw this picture he believed it to be a picture of the man who identified himself as Solomon Idiaraba that he met with in April 2009. He had a reason to remember this man as by this time he knew that there would be problems in collecting the receivable. His identification of the defendant using this picture may be entitled to less weight than the identification by Ms. Parent as she was the first person to make this discovery and may have told him her own conclusion when she showed the picture to him.

Surprisingly no one asked that question of either witness. Mr. Birnbaum also had some recollection of being shown some surveillance images and believing that the man in the image was the man who identified himself as Mr. Solomon Idiaraba. As well Mr. Birnbaum also saw and identified Mr. Umenwoke at the preliminary inquiry in July 2012 and at trial. His evidence is clear that the male that he met with was alone and that that male was Mr. Umenwoke. [ 95 ] I also find that Ms. Parent, who came to the same conclusion, honestly believed that the man she met with twice is in fact the defendant, John Umenwoke.

Both times there is no issue with her ability to properly see the face of the man. The first time she met with the man she believed at the time to be Mr. Idiaraba, it was only for five to ten minutes but it was for the purpose of introducing herself to him and she had a chance to look at him for the duration of her part of the meeting. Ms. Parent testified that she was standing facing him and described the room as very well lit with artificial light; the blinds on the windows were shut a bit.

She described the man she met at the time of that first meeting as being a black man who was a bit shorter than her (she is five foot ten inches tall but normally wears heels), robust but not overweight, he had no hair but maybe a bit of stubble on his face and he was wearing dark-rimmed glasses. There was nothing prominent that stuck out in her mind about him. Her description is worded differently but is consistent with the description

given by Mr. Birnbaum and with the appearance of Mr. Umenwoke. [96] When Ms. Parent met with this person again for the purpose of executing documents, she was present with Mr. Roter who didnot testify. It was a serious meeting as they were executing documents and Ms. Parent watched this person sign several documents. Theyhad some period of time together. Ms. Parent testified that she was shown some picture ID and she compared it to the person thatattended to sign the documents. She said this was her practice and part of her job with all of the factoring applications.

However, as acopy of this document was not provided to the court, and given the fact Ms. Parent could only speak to her practice, I have not assumedthat this was done in this case. [97] Mr. Okoronkwo submitted that I should draw an adverse inference from the fact that the identification Ms. Parent referred tothat she would have copied from what she was shown by the person who represented himself to be Solomon Idiaraba was not produced.The difficulty with this is that I have evidence from Ms. Parent that she would have made a copy and kept a copy but I have noinformation as to what may have happened to it.

She was no longer an employee of Unified when she testified and no questions wereasked of any of the witnesses that would assist me on this point. [98] Ms. Parent is the one who found the Facebook picture of Mr. Umenwoke which she recognized as the person who calledhimself Solomon Idiaraba. This was a few months after she met the person she knew as Solomon Idiaraba. She was not looking for Mr.Umenwoke nor would she have had a preconceived notion that he was the man who called himself Solomon Idiaraba. The fact that sheindependently came to this conclusion when she came across the picture of Mr.

Umenwoke adds considerable weight to heridentification of Mr. Umenwoke as the man that she met with. A couple of months later she also saw a photograph from a surveillancevideo of the person she met who identified himself as Solomon Idiaraba, which as I have said is an image of Mr. Umenwoke. She alsoidentified Mr. Umenwoke at the preliminary inquiry and again at trial. [99] In my view the evidence of Mr. Birnbaum and Ms. Parent, identifying John Umenwoke as the man they met with, whoidentified himself as Solomon Idiaraba, is reliable.

In addition to the circumstances of their meetings which I have already referred to, thefact their evidence is also based on subsequent identifications that they were able to make before they saw the defendant in court meansthat there evidence deserves much more weight than their in court identification. The fact that Ms. Parent and Mr. Birnbaum were able tomake earlier identifications of Mr.

Umenwoke as Solomon Idiaraba based on the Facebook picture in September 2009 and thesurveillance images in November 2009 strengthens their in court identification as they were made at a time “before the sharpness of …[their] recollection was dimmed by time”; see Professor Libling, Evidence of Past Identification, [1977] Crim. L.R. 268 as approved ofby the Court of Appeal in R. v. Tat (1997), (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.). [100] I also note that it was never directly put to either Mr. Birnbaum or Ms.

Parent that they had mistakenly identified Mr.Umenwoke as Solomon Idiaraba save that it was implicit in the suggestion put to Mr. Birnbaum that he met with two people. [101] The only evidence that a person by the name of Solomon Idiaraba in fact exists, apart from the evidence of Mr. Birnbaum andMs. Parent that they met with someone who identified himself with that name, is the credit check and the one personal cheque in thatname. The fact that a credit check was done and completed with that name and SIN might suggest that a person with that name and SINexists.

However, since the truth of the contents of this document were not proven, the fact that this report states that the Limevale addresswas a former address for Mr. Idiaraba and that he was a former employee of Unified is not proven. As well the existence of a personalcheque for $200 written by a Solomon Idiaraba and made payable to Unified suggests a person with this name existed at the time. [102] Although there is a reasonable inference to make from the credit check and the personal cheque that there is a real SolomonIdiaraba that does not end the matter. Even if Mr.

Idiaraba is a real person, and for example is a friend of Mr. Umenwoke’s, that does notmean that he is the one who met with Mr. Birnbaum and Ms. Parent. It could be that this person permitted Mr. Umenwoke to use hisname and SIN and otherwise had no involvement in the matter. It could also be that Mr. Umenwoke did so without his permission if heknew his SIN and date of birth. That information would have been known to him if Mr. Idiaraba was in fact a former employee ofUnified. Even if Mr.

Idiaraba had some involvement in the matter it does not mean that he was a 95% owner of Unified as represented toLiquid Capital. Nor does it change the fact that there is compelling evidence that Mr. Umenwoke misrepresented himself as this person. [103] The identification evidence of Mr. Birnbaum and Ms. Parent is corroborated by a number of pieces of circumstantial evidence. Iaccept Ms. Mokgwathi’s evidence that at the material time Mr. Umenwoke was living at the Limevale address and that his business,Computer Reboot, was using the Tuxedo Court address. I have already found that Mr.

Umenwoke’s telephone number at the materialtime was 647-501-6765. The fact that Ms. Mokgwathi never saw any evidence of anyone else living at the Limevale address and nevermet a man by the name of Solomon Idiaraba is also significant since she knew Mr. Umenwoke and was in an intimate relationship withhim for a significant period of time. [104] I accept the evidence of Ms. Mokgwathi that Mr. Umenwoke asked her to sign the documents incorporating Unified and theaccount opening documentation for the two TD Bank accounts of Unified and that she signed cheques at his request and in the mannerthat he directed.

There is no doubt in my mind that Unified was incorporated for the benefit of Mr. Umenwoke and that he was the onethat controlled the banking for Unified and the funds it received. There is no evidence in the bank records of any money being paid outto a person named Solomon Idiaraba. Some payment to him of funds would be expected if he was in fact a majority shareholder ofUnified as represented. Mr. Umenwoke is the only person who received significant funds from those accounts. He must have been theone with internet access to the accounts as I accept the evidence of Ms. Mokgwathi that she did not.

I also find that Mr. Umenwoke had adebit card permitting him to do banking transactions via ATM machines as his image is the one shown with the various transactionsrecorded by video equipped ATM machines in connection with Unified banking transactions. He was in control of the company and thebank accounts of Unified through Ms. Mokgwathi. There is no evidence that a person named Solomon Idiaraba had any access toUnified’s accounts. [105] Mr. Wright submitted that Mr. Umenwoke is the actual and only principal of Unified. The evidence of Ms. Mokgwathi as to theincorporation of Unified and the fact Mr.

Umenwoke’s phone number and Limevale address were used in the incorporating documentsand in the documents provided to Liquid Capital is strong evidence of Mr. Umenwoke’s connection to Unified and the transaction withLiquid Capital. The evidence is compelling that the company was being operated solely for Mr. Umenwoke’s benefit. Certainly if Mr.

Idiaraba existed he could not have been a 95% shareholder based on the evidence that is admissible. [ 106 ] I have found that Mr. Umenwoke received directly or for his benefit more than $60,000 in US and Canadian currency from the funds paid to Unified by Liquid Capital. Mr. Okoronkwo submitted that this was because he supplied the computers to Wifysom. He attempted to rely on the fact that Mr. Birnbaum was told by the company in Ghana that the product was received. This however, was hearsay evidence and admitted only for the purpose of the narrative.

There is no basis upon which that evidence could be admitted for its truth. Mr. Okoronkwo was arguing this point because if Mr. Umenwoke was responsible for the supply of the product, that could be a reason for him receiving the proceeds from the advance from Liquid Capital. Ms. Parent testified to an investigation she did of the tracking number and concluded that the product was not in fact sent to the company in Ghana. That too was not proven as true as it was based on hearsay evidence. [ 107 ] Even if it had been proven that Mr.

Umenwoke supplied computer equipment to Wifysom, it does not assist in establishing that a person by the name of Solomon Idiaraba had an interest in Unified. Similarly there is no evidence before the court that Mr. Umenwoke was either an employee or supplier to Unified. The information is stated in documents that were not admitted for the truth of their contents. [ 108 ] It is the position of Mr. Okoronkwo that Mr. Solomon Idiaraba was in fact the majority shareholder of Unified when the application was made to Liquid Capital and that there was no deceit in that regard.

He referred to the Directors and Officers of the Corporation document and the Resolution of the Board of Directors of Unified which show Mr. Idiaraba as the president of the company. The difficulty with this submission is that these documents are part of the application provided to Liquid Capital and could just as easily have been signed by Mr. Umenwoke using a forged signature for Solomon Idiaraba. They also do not establish shareholdings. [ 109 ] Mr. Okoronkwo also attempted to rely on the evidence of Mr. Birnbaum that someone from the company in Ghana had told him that they had paid Mr.

Idiaraba instead of Liquid Capital. Again that was hearsay evidence that was not proven. [ 110 ] Mr. Okoronkwo relied on a number of other documents for the truth of their contents, when that had not been admitted by the Crown and the documents had not been entered as business records. The documents that were part of the application were admitted into evidence on the basis that these were the documents received and relied upon by Liquid Capital. For example the application includes a letter purporting to come from Mr. Nwakobi, the solicitor for Unified, which states that Mr.

Idiaraba is a 95% shareholder of Unified. This document was not admitted for the truth of its contents. With that letter was a certified copy of the company profile which states that the sole director of the company was Mr. Idiaraba. However, that document was not admitted for the truth of its contents either nor did Mr. Nwakobi or any other lawyer representing the company testify. [ 111 ] Mr. Okoronkwo submitted that Mr. Umenwoke is identified as the supplier in the application to Liquid Capital and that he would not put his real name in the application if he was trying to defraud Liquid Capital.

At first blush this argument seems to have some merit. Mr. Wright submitted that this is not how that part of the application should be read and that the principal suppliers were shown as other companies but the fact remains that on the Crown’s theory one would expect Mr. Umenwoke to distance himself from the application. [ 112 ] Mr. Wright submitted that it made sense for Mr. Umenwoke to put his name in the application as it was almost impossible for him to do the fraud without going to the bank to collect the money from Unified’s account.

He would know that his name would show up in connection with the cheques received from Unified as the bank records would show where the money went. In other words Mr. Wright submits that it was part of the planning and part of a possible defence which is in fact what Mr. Umenwoke now argues. Since he knew his name would come up he could say that he was Computer Reboot and make the arguments that he was the supplier and entitled to the money as he did at trial. I accept this as one possible explanation for why Mr. Umenwoke’s name appears in the application.

Certainly the fact that it does does not give me any doubt about my conclusion that he was the person who in fact met with Mr. Birnbaum and Ms. Parent and executed documents in front of Ms. Parent. [ 113 ] Having made these findings I come to the application of the law to the facts. I am satisfied beyond a reasonable doubt that Mr. Umenwoke is the man that met with Mr. Birnbaum and Ms. Parent and that he falsely represented himself to be Solomon Idiaraba. I am also satisfied that he executed the documents with Ms. Parent on April 21, 2009 and purported to sign those document as Solomon Idiaraba.

I am also satisfied that Mr. Umenwoke was the operating and directing mind of Unified at the time and that Ms. Mokgwathi’s shares were held for his benefit and that Mr. Idiaraba, if he exists, did not own a majority interest in the company. Clearly Mr. Umenwoke used deceit and falsehood in the application process to Liquid Capital seeking an advance. [ 114 ] Based on the evidence of Mr. Birnbaum and Ms. Parent, I am satisfied beyond a reasonable doubt that the satisfactory credit check conducted of Solomon Idiaraba was a significant factor in entering into the Factoring Agreement and providing the advance.

The deceit and falsehood therefore caused Liquid Capital a deprivation in the amount of the advance of US $75,650.60 as that money has not been recovered. [ 115 ] That leaves the question of whether or not Mr. Umenwoke intended to defraud Liquid Capital. The only possible conclusion given my findings is that he did intend to do so. Even if Mr. Umenwoke somehow rationalized his behaviour in his own mind on the basis that Mr. Idiaraba was some sort of a business partner in Ghana and he, Mr.

Umenwoke, supplied the computers, which would be speculation on my part, any feeling he had that he was acting properly is of no consequence as he intentionally took many steps to represent himself as Solomon Idiaraba to Liquid Capital. In so doing he committed an elaborate and well planned fraud on Liquid Capital and secured a significant advance of funds and converted most of the money to himself. Disposition [ 116 ] Mr. Umenwoke would you please stand. [ 117 ] For the reasons I have given, I find you guilty of fraud over $5,000 as alleged in count one.

SPIES J. Released: April 2, 2013 Edited reasons released: May 21, 2013 CITATION : R. v. Umenwoke, 2013 ONSC 1629 COURT FILE NO.: 12-10000512-0000 DATE: 20130402 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and - JOHN UMENWOKE Defendant REASONS FOR JUDGMENT SPIES J. Released: April 2, 2013