R. v. Ekuban Between
Her Majesty the Queen, and
Ben Ekuban
[2006] O.J. No. 2415
Ontario Court of Justice
Toronto, Ontario
L.E. Marshall J.
May 2, 2006.
(183 paras.)
R. v. Ekuban Counsel:
T. Morgan, Esq. Counsel for the Crown
S. Pieters, Esq. Counsel for the Accused
¶ 1 L.E. MARSHALL J.:-- Yes, Mr. Morgan.
¶ 2 MR. MORGAN: We can deal with the Ekuban matter.
¶ 3 MR. PIETERS: Yes. Good afternoon, Your Honour.
¶ 4 THE COURT: Good afternoon.
¶ 5 MR. PIETERS: Selwyn Pieters, appearing for Mr. Ekuban.
¶ 6 THE COURT: Yes, Mr. Pieters. This is Ekuban, number 21, yes.
¶ 7 MR. PIETERS: That's right. Now--now, Your Honour, we were here--we were here about two weeks ago, on the 18th of April, and I'm just going to pass up the transcript from Mr. Justice Taylor. The--the basic thrust of why we're here is --
¶ 8 THE COURT: What is the issue?
¶ 9 MR. PIETERS: The--the issue is, basically, the client, Mr. Ekuban, --
¶ 10 THE COURT: Did he plead guilty?
¶ 11 MR. PIETERS: He pled guilty on the 18th, and Justice--Justice Taylor struck the--Count 4--he struck the plea, because the explanation that Mr. Ekuban gave caused Justice Taylor to come to --
¶ 12 THE COURT: Have concerns that he may have a defence.
¶ 13 MR. PIETERS: That--well, not only a defence, that he--he may not--the offence may not attract criminal liability. So, --
¶ 14 THE COURT: So, what is--what are you here for today?
¶ 15 MR. PIETERS: What I discussed with the client is--and the Crown, is that he can plead guilty to Count 1, Fraud Over, and we will write a cheque for the amount that is alleged. And we will ask for an absolute discharge, and so there'll be no --
¶ 16 THE COURT: Well, the thing is, is the Crown agreeable to accepting a plea just to one count, which is Count 1?
¶ 17 MR. MORGAN: Yes, the count (sic) is agreeable.
¶ 18 THE COURT: Okay.
¶ 19 MR. MORGAN: Or the Crown is agreeable.
¶ 20 THE COURT: Now, I should tell you, in terms of cheques and what not, given that it is fraud, the only way this Court is satisfied is, if the money is in the lawyer's trust account and the lawyer gives a personal undertaking or we wait until the cheque clears.
¶ 21 MR. MORGAN: Yes.
¶ 22 MR. PIETERS: Well, --
¶ 23 THE COURT: I do not accept uncertified cheques from people charged with fraud.
¶ 24 MR. PIETERS: It's--it's in my--it's in my trust account, it was paid by money order, and so I'm assured --
¶ 25 THE COURT: Okay. If you can give a personal undertaking that is --
¶ 26 MR. PIETERS: Well--well, I can, because I brought my trust account chequebook. So, I'll-
¶ 27 THE COURT: No, no, I do not mean ...
¶ 28 MR. PIETERS: -I'll ...
¶ 29 THE COURT: ... today.
¶ 30 MR. PIETERS: ... write a cheque.
¶ 31 THE COURT: No, no, no, no, I mean --
¶ 32 MR. MORGAN: I just need an undertaking means, --
¶ 33 MR. PIETERS: I know what an undertaking is, Your Honour.
¶ 34 THE COURT: Well, no, no, but the under--okay, the undertaking could be worded, that you would undertake within five business days, to remit the cheque to the complainant or something like that.
¶ 35 MR. PIETERS: Okay, very well, Your Honour.
¶ 36 THE COURT: As opposed to waiting for something to--but the thing is, before you do that, you should be really satisfied that that money is properly cleared into your account.
¶ 37 MR. PIETERS: Okay.
¶ 38 THE COURT: Okay?
¶ 39 MR. PIETERS: I--I--I take it --
¶ 40 THE COURT: Protect thyself at all turns.
¶ 41 MR. PIETERS: Yes. Yes. And I appreciate that, Your Honour.
¶ 42 THE COURT: Okay. All right. So, he is to be arraigned on the Fraud Over?
¶ 43 MR. MORGAN: Thank you, Your Honour.
¶ 44 THE COURT: Okay. If he can be arraigned on the Fraud Over, please.
¶ 45 CLERK OF THE COURT: Ben Ekuban, sometime between and including the 29th day of September in the year 2004, and the 31st day of December in the year 2004, in the City of Toronto, in the Toronto Region, did by deceit, falsehood, or other fraudulent means, defraud Canadian Imperial Bank of Commerce, of monies of a value, which exceeded $5,000.00, contrary to the Criminal Code. And how does the Crown elect to proceed?
¶ 46 THE COURT: That is a straight indictable offence.
¶ 47 MR. MORGAN: Straight indictable.
¶ 48 THE COURT: Does he waive the reading of the election, Mr. Pieters?
¶ 49 MR. PIETERS: Yes, Your Honour.
¶ 50 THE COURT: And how does he elect to be tried, before me today?
¶ 51 MR. PIETERS: Yes, by judge alone.
¶ 52 THE COURT: And how do you plead, sir, guilty or not guilty?
¶ 53 THE ACCUSED: Guilty.
¶ 54 THE COURT: Okay, you can have a seat on the bench, sir, and listen to the allegations.
¶ 55 MR. MORGAN: The facts are ...
¶ 56 THE COURT: Yes.
¶ 57 MR. MORGAN: ... these, Your Honour. The accused opened an account with C.I.C.C., at 2340 Finch Avenue West, in Toronto, September 20th 2004. He presented identification in his name and was issued an account number, 7674430, and a banking card which to access the account. He deposited $5.00 to open same.
¶ 58 On September 29th 2004, he attended an A.B.M. machine at the C.I.B.C. branch at the same location, he used his banking card to access the account, he deposited an altered cheque from Great West Life Assurance Company GRS Securities section. The cheque had numbers 0275393 and 000679003205. It was dated September 20th 2004, and made out in the amount of $10,000--$10,215.19. It was made payable to Mr. Ben Ekuban, 27 Blacksmith Crescent, Toronto.
¶ 59 The cheque had been signed by an Al Boris, and John Samborski, spelled, B-O-R-I-S, Samborski is S-A-M-B-O-R-S-K-I. It had originally been made payable to T.D. Waterhouse I.T.F. Sheldon P. Sandau, S-A-N-D-A-U.
¶ 60 Cheque had apparently been stolen from the mail and altered to be made payable to the accused. There was an automatic hold placed on the cheque for 10 days since C.I.B.C. was unable to contact the drawer. The issuing branch was notified, and the hold was extended for one year (sic). The accused attended the branch and explained that he was in a hurry for the funds, but agreed to the hold on the cheque. He advised he was running his father's car business.
¶ 61 The accused kept contacting the bank to see if the cheque had cleared. Finally, on November 30th 2004, Royal Bank was contacted regarding the cheque. They advised that it had cleared. C.I.B.C. then began releasing some of the funds.
¶ 62 On November 30th, some $4,000.00 was released, December 2nd, another $1,000.00, December 10th, an additional $1,000.00, December 20th, $2,000.00, December 24th to 31st, the remaining funds were withdrawn. The cheque was returned on January 29th 2005 to the C.I.B.C. branch as an altered cheque.
¶ 63 The accused was contacted by phone regarding these counterfeit cheque--the counterfeit cheque deposit. He was advised he should attend the station, but never appeared. He was later contacted and advised that he would be charged criminally, but refused to surrender himself to police. He was finally arrested on May 26th 2005, in relation to this offence. Those are the facts as alleged, Your Honour.
¶ 64 THE COURT: Stand up, sir. Is this basically correct, sir?
¶ 65 THE ACCUSED: Not--not all of it.
¶ 66 THE COURT: Sir, did you know that you weren't entitled to a cheque from Great West Life?
¶ 67 THE ACCUSED: Well, when I--when I received the cheque, they didn't tell me--I didn't ask questions.
¶ 68 THE COURT: Excuse me? Okay, but the thing is, see that is called wilful blindness.
¶ 69 THE ACCUSED: Okay.
¶ 70 THE COURT: Did you--you knew that you were not entitled to any cheque from Great West Life, is that correct?
¶ 71 THE ACCUSED: That's correct.
¶ 72 THE COURT: And you weren't going to keep all the money yourself, were you?
¶ 73 THE ACCUSED: No.
¶ 74 THE COURT: You were going to give it on to somebody else?
¶ 75 THE ACCUSED: Yeah, the person that gave it to me, yeah.
¶ 76 THE COURT: Yes, your friend. Some friend. All right, then, I am satisfied that there should be a finding of guilt. So, the total loss here was? The whole amount $10,215.19?
¶ 77 MR. MORGAN: I've actually got--if I could just have a brief indulgence.
¶ 78 THE COURT: It cannot be any more than the face of the cheque, I am not a collection agency for sloppy banking practices. $10,000?
¶ 79 MR. PIETERS: Yeah.
¶ 80 THE COURT: I believe my friend has indicated that there--in consultation with Mr. Blain and ....
¶ 81 THE COURT: Now, who is out the money?
¶ 82 MR. PIETERS: C.I.B.C.
¶ 83 MR. MORGAN: Yes, C.I.B.C.
¶ 84 THE COURT: C.I.B.C.? And this is the one at 2340 Finch Avenue West, Toronto?
¶ 85 MR. PIETERS: That's correct.
¶ 86 THE COURT: So, Mr. Pieters you are telling me that you are satisfied you have absolutely, positively, cleared into your trust account, $10,000.00?
¶ 87 MR. PIETERS: Yes.
¶ 88 THE COURT: Are you sure it is?
¶ 89 MR. PIETERS: I am sure.
¶ 90 THE COURT: How long ago did you deposit the money in your account?
¶ 91 MR. PIETERS: I deposited it on the 18th of April when we were here, the same day, so I'm sure I would have known if it is not cleared by now.
¶ 92 THE COURT: Well, no, the thing is, remember it took ...
¶ 93 MR. PIETERS: But --
¶ 94 THE COURT: ... four months for the bank to know that something didn't clear.
¶ 95 MR. PIETERS: So, that's true. So, I think--I think that caution and the--the admonition of Your Honour is well taken, and so I--I think he should put the proviso that you mentioned earlier.
¶ 96 THE COURT: Okay. Well, I think what I would rather do is--is that going to be the position, for a discharge, once it is all done?
¶ 97 MR. MORGAN: Yeah.
¶ 98 THE COURT: Okay. So, to protect you, since you are giving your undertaking, like, who is that cheque--who is the money order payable to?
¶ 99 MR. PIETERS: It was made to Selwyn Pieters, in trust. So, ....
¶ 100 THE COURT: Yes. And which bank was it drawn on?
¶ 101 MR. PIETERS: T.D.
¶ 102 THE ACCUSED: The bank is Royal Bank.
¶ 103 MR. PIETERS: The client is saying Royal Bank. My account is T.D.
¶ 104 THE COURT: Yes. Well, I guess it depends if you are satisfied that was a completely legitimate money order.
¶ 105 MR. PIETERS: I mean, I'm satisfied. I--I--I am.
¶ 106 THE COURT: All right. If that is the case, and you are prepared to give me your personal undertaking to pay $10,000.00 to the C.I.B.C., 2340 Finch Avenue West, within five business days, by cheque ...
¶ 107 MR. PIETERS: Yes.
¶ 108 THE COURT: ... from your trust account?
¶ 109 MR. PIETERS: Yes
¶ 110 THE COURT: Prepared to accept that undertaking?
¶ 111 MR. MORGAN: I'm content.
¶ 112 THE COURT: Okay. That being done, ....
¶ 113 MR. MORGAN: And the Crown's position is for a conditional discharge, 12 months probation, with the mandatory terms and also not to possess I.D. that is not his own.
¶ 114 THE COURT: Is that the undertaking then, gentlemen?
¶ 115 MR. PIETERS: Ah, no. We're asking for an absolute discharge, Your Honour.
¶ 116 MR. MORGAN: That was the position of the Crown.
¶ 117 THE COURT: There is a difference. I thought it was a joint submission?
¶ 118 MR. MORGAN: It was a joint submission if he'd come to the- if he'd come to the table with a restitution.
¶ 119 MR. PIETERS: Well, we --
¶ 120 MR. MORGAN: It was open with respect to conditional or absolute.
¶ 121 THE COURT: Well, he did. He did come to the table with the restitution.
¶ 122 MR. PIETERS: It's here.
¶ 123 THE COURT: I do not know what you mean?
¶ 124 MR. MORGAN: Mr. Blain had indicated, if full restitution was made, ...
¶ 125 THE COURT: It is.
¶ 126 MR. MORGAN: ... then this gentleman could come to court and make his pitch for an absolute discharge and we would be seeking a conditional discharge.
¶ 127 THE COURT: Oh, I see. So, it was open submissions, then. All right. So, what can you tell me about your client?
¶ 128 MR. PIETERS: Mr. Ekuban is 23--23--21, oh--21 years old. He worked at his father's auto-mechanic shop. His father is quite a prominent person in the Chanalan community.
¶ 129 THE COURT: Did he tell the police who it was that gave him the cheque? The real name or some guy named Joe? Who did you get the cheque from?
¶ 130 THE ACCUSED: Ah, he--everybody called him by his nickname, Money. And I explained to them, I told them how they (sic) looked like, but officer said --
¶ 131 THE COURT: Oh, please, please. What Money is his name? This is baloney. Why would you do this as a favour for a stranger? See, this is a real setup. You go to a bank you do not deal with, you open a bank account for $5.00, you put in this fraudulent cheque, you know, this guy is no friend of yours, he is a crumb. And because of him, now, your are in a criminal court, and you are still covering for him. Why?
¶ 132 THE ACCUSED: Well --
¶ 133 THE COURT: How much were you supposed to get out of this?
¶ 134 THE ACCUSED: Cause I had my car, he was buying my car, so he was giving me $4,000.00 out of it. And he told me that he worked for this company --
¶ 135 THE COURT: So, where is your car now?
¶ 136 THE ACCUSED: My car? I don't have it.
¶ 137 THE COURT: Okay. The thing is, you had to sign an ownership, right?
¶ 138 THE ACCUSED: Yeah.
¶ 139 THE COURT: So, it is very easy to find out who Money is, because Money took ownership of your car. So, if you speak to the police, you can give them particulars on your car and they can search it out that way. Right?
¶ 140 THE ACCUSED: Yeah.
¶ 141 THE COURT: So, I am going to put this over two or three weeks, for you to get in touch with the police and sort it out. And you want your absolute, that is fine. You know the expression, "Show me the money"? this one is, "Show me money's I.D.". Yes, sir?
¶ 142 THE ACCUSED: But the officer, they called me but they told me the car is at the impound. And it's like--it's like on bricks when they found it.
¶ 143 THE COURT: So, you didn't--you signed over your ownership?
¶ 144 THE ACCUSED: Yes, the- I signed over my ownership, but they said that everything is under my name still, but the car's in the impound, because they found the car with no--with no tires, nothing in the car, even.
¶ 145 THE COURT: So, what you are basically saying is, they stripped it.
¶ 146 THE ACCUSED: Basically.
¶ 147 THE COURT: And you did not look around to try and find out who this guy was, who ripped you off?
¶ 148 THE ACCUSED: I--I--I looked around, and I actually--I told the officer about it, officer say (sic) he doesn't care.
¶ 149 THE COURT: No, no, not the officer, what did you do?
¶ 150 THE ACCUSED: Ah --
¶ 151 THE COURT: You are the one who found this guy. Was he Ghanaian as well?
¶ 152 THE ACCUSED: No, Nigerian.
¶ 153 THE COURT: International relations. I am not going to say it, I am not going to say what I am thinking.
¶ 154 MR. PIETERS: No, don't.
¶ 155 THE COURT: Okay. I appreciate the money has been paid back. Are you going to school or work or ...
¶ 156 THE ACCUSED: I'm going to Centennial, and I work at ...
¶ 157 THE COURT: Okay. Okay. Tell you what, Counsel, you are going to pay it back.
¶ 158 MR. PIETERS: Okay.
¶ 159 THE COURT: I want a little pound of flesh here. He can either do it--he can do it with some community service, and what I am prepared to do is put it over until he comes back and he has done 40 hours or I can do it as part of a conditional discharge, it is his choice.
¶ 160 MR. PIETERS: All right. So, why don't we just ...
¶ 161 THE COURT: Adjourn this for him ...
¶ 162 MR. PIETERS: Yes, let him ...
¶ 163 THE COURT: ... to do 40 hours?
¶ 164 MR. PIETERS: ... do 40 hours community service and then he'll come back and get an absolute discharge.
¶ 165 THE COURT: That is the way it would work. He shouldn't try crying poor to me with what is in his ears there.
¶ 166 MR. PIETERS: Well, ...
¶ 167 THE COURT: Okay, I know. All of his family. Guys with bigger diamond earrings than I have got just make me jealous, it is just an aggravating factor, here.
¶ 168 MR. PIETERS: Well, my ears aren't pierced, Your Honour.
¶ 169 THE COURT: Well, it is not you that I am jealous of, it is his earrings. All right. How long will does it take you to do 40 hours of community service?
¶ 170 THE ACCUSED: Two weeks.
¶ 171 MR. PIETERS: No.
¶ 172 THE COURT: But you are working, you are going to school. Oh, this is legitimate, this is 40 full hours of a legitimate charity.
¶ 173 THE ACCUSED: Yeah, I know.
¶ 174 MR. PIETERS: One month?
¶ 175 THE COURT: Are you finished school for the year?
¶ 176 THE ACCUSED: Ah, I start school next week.
¶ 177 THE COURT: Oh, they extended it because of the strike, right. Well, Counsel if we said June 22 or 23, would that give him enough time?
¶ 178 MR. PIETERS: Let me just check. Yeah, June 22 or--the 21st or 22nd would be fine.
¶ 179 THE COURT: Okay. June 22, 304, 10:00 a.m., for sentence. Bring with you proof that you have done 40 hours of community service, and then you get your discharge, along with this restitution. Look, you have got a future ahead of you, there is no such thing as a good or easy deal, you know. And look who is holding the bag here, it is you. So, think in future, son. Okay, we will see everybody on June 22nd, Thanks a lot.
¶ 180 MR. PIETERS: Thank you, Your Honour.
¶ 181 THE COURT: Okay. And the other charges, can they be withdrawn today and just put this over for sentence?
¶ 182 MR. MORGAN: Yes, Your Honour.
¶ 183 THE COURT: Other counts are withdrawn today, thanks.
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