Joseph Kennedy and Donald Schaeffer attacked a fellow inmate while in custody. Keith O’Loughlin decided to join in. He was convicted by a jury after trial, and appealed from conviction and sentence: R v O’Loughlin, 2017 ONCA 89.

The case for the Crown at trial was simple: video surveillance of the assault. The video depicted O’Loughlin first watching the assault intently, and then purposefully walking toward the bathroom, where the assault had moved. O’Loughlin was then seen peeling back a hand clutching the doorframe, and then moving his leg in a manner consistent with a knee strike: @paras 4-8.

After brief deliberations, a properly instructed jury convicted O’Loughlin. Trial counsel agreed that the jury could find O’Loughlin guilty as either a joint principal or as an aider: Section 21(1), Criminal Code of Canada. The jury was instructed that their verdict need only be unanimous in finding guilt, not as to the nature of O’Loughlin’s participation: R v Thatcher [1987] 1 SCR 652.

At trial, the principal assailant –Kennedy– testified for the defence. He testified that O’Loughlin was not involved in the attack. Kennedy testified that O’Loughlin intervened to stop him from stomping on the victim’s head, saying, “Joe, that’s enough, that’s enough”. The defence position at trial was that while O’Loughlin was present for the assault, he was not participating: @ para 9. This position was rejected by the jury.

The Ontario Court of Appeal reviewed the video surveillance evidence. They found no basis to interfere with the verdict. The video formed a sufficient basis on which the judge could instruct that O’Loughlin could be found guilty. As such, the appeal was dismissed. The appeal from sentence was allowed, but also dismissed: @paras 18-28.

Comment

In writing for a unanimous court, Watt J. highlighted that O’Loughlin’s presence was not accidental. This was not a case of simply being “in the wrong place at the wrong time.” His presence during the assault was “intentional”, and his involvement was “active”: @para 16. While “mere presence” or “passive acquiescence” is not enough to establish criminal liability as a party (see R v Kirkness, 1990 3 SCR 74; R v Dunlop, [1979] 2 SCR 881), in this case, the takeaway point from the Court of Appeal is clear: presence itself during a crime does matter, and it is not necessarily innocent.

Stephanie Iroguehi received $10,000 from a person she did not know. The money was deposited into her account. She was later charged with fraud and possession of currency she knew was obtained by the commission of an offence – the latter charge related to her withdrawal of that money and delivery of it to a third party. She was convicted of the possession charge but acquitted on the fraud: 2015 OJ No 566.

Shirley Connolly was contacted by phone and told that she had won 2.6 million dollars. She was told that in order to collect the money she would have to participate in a “scheme”. The scheme required her to accept a $25,000 transfer and then withdraw that money and deposit it into other accounts. Despite obvious concerns, Connolly followed through. Unbeknownst to Connolly, at the time, the $25,000 was actually from her own VISA line of credit.

One of the accounts she deposited money into was Iroguehi’s account; $10,000 was deposited. On that same date, through three different transactions, Iroguehi withdrew $4700 of that amount; she later withdrew more of the money.

Iroguehi was charged. At trial she testified – a summary of her evidence was set out by the trial judge:

In October of 2012, she was asked by a family friend named Edison Obaseki for her bank account # in order to allow a friend of his to transfer $10,000 to her account. She had concerns about whether the $10,000 was the product of fraudulent cheques from schemes she had heard about through friends. Edison apparently assured her that the money was legitimate and stated that he could not use his own account as it was "not working". She agreed and provided Edison with her account information. [Emphasis added]; [@6].

The money was transferred. Iroguehi went to try and withdraw it; she was told she could not withdraw the entire amount. Iroguehi then began withdrawing as much as she could and over the course of the next few days withdrew $8000. Iroguehi later handed over that $8000.

With respect to the possession charge, the trial judge noted that the issue was whether Iroguehi “knew that the money in question was obtained as a result of the commission of an offence” [@15]. The trial judge noted that it was conceded that the money was obtained by the commission of an offence and Iroguehi had possession thereof, thus, the only issue was her knowledge. On this point the trial judge concluded:

I am satisfied beyond reasonable doubt that Ms. Iroguehi was in a state of deliberate ignorance with respect to the illegal source of the funds that were transferred into her account. I make the finding based on a consideration of the following facts:

The unusual nature of the request from Edison to Ms. Iroguehi that she accept a $10,000 transfer of funds from an unknown source in order for her to in effect launder the money
The fact that she questioned Edison about whether the money came from cheque scams, which suggests that Ms. Iroguehi recognized that she was being asked to deal with funds that potentially derived from an illegal source
Her failure to ask virtually any questions of Edison, including a sensible explanation of his inability to use his own account, the name of the friend, the reason why her account had been selected and, most importantly, where the money was coming from. This compels me to the conclusion that Ms. Iroguehi simply did not want to know where the money was from, despite having ample reason to suspect that its source was an illegal one.
The fact that she handed the money over to a complete stranger in the manner she described suggests that she did not want to know the identity of the money's source, bolstering my conclusion that she had reason to suspect its origin was illegal. [Emphasis added]; [@16].

Having convicted Iroguehi of that offence the trial judge considered the fraud count. On that count the trial judge noted that the issue was whether she was “an aider of the unknown principal or principals who were responsible for transferring the $10,000 from Ms. Connolly’s account to her own” [@12]. The trial judge concluded that Iroguehi was not.

However, I am not satisfied beyond reasonable doubt that Ms. Iroguehi was a party to the fraud committed upon Ms. Connolly. Although her actions in providing her account information to Edison assisted Edison (and perhaps others) in fraudulently transferring money to her account from Ms. Connolly's account, there is no evidence that this was her intent. Presumably, in her state of wilful blindness, she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources. [Emphasis added]; [@18].

In other words, the trial judge found she did not intend to aid Edison in the fraud. Notably, however, the trial judge accepted that she was willing to aid him in transferring money that was unlawfully obtained. The trial judge continued:

It may well be that she knew the money was derived from the commission of fraud, or it may simply be that she chose to remain in a state of deliberate ignorance as to the money's origin.

Ms. Iroguehi's deliberate ignorance to the source of the money is not, in my view, sufficient to prove that she had subjective knowledge of the fraudulent scheme through which that money was obtained. She will therefore be found not guilty on count 1. [@20-21].

With respect, while these comments may support the conclusion that Iroguehi was not a party under section 21(1) of the Code, it does not follow that she should have been acquitted – the trial judge did not address section 21(2) and thus failed to fully consider the potential criminal liability of Iroguehi. Indeed, on the findings made by the trial judge it seems a conviction under section 21(2) was possible, if not inevitable.

Pursuant to section 21(2), if Iroguehi formed an intention in common with another person to carry out an unlawful purpose and she assisted that person therein, then if that person committed an offence that Iroguehi knew or ought to have known was a probable consequence of carrying out the unlawful purpose, she would be a party to that offence. In this section Iroguehi need not intend for the fraud to occur, so long as she intended to enter the common unlawful purpose with foresight that it was a probable consequence.

While the trial judge did not address the findings most pertinent to this section – as he did not consider it – the findings he did make suggest there was a real prospect that a conviction would have been entered through the application of section 21(2).

First, there seems to be little doubt that Iroguehi formed an intention in common to carry out an unlawful purpose and assisted Edison therein; her conviction for possessing money obtained by crime at the behest of Edison and later laundering it is proof of that.

Second, while some findings are absent on this point, the findings made would likely support the conclusion that she knew or ought to have known that fraud was a probable consequence of carrying out the scheme.

The following conclusions reached by the trial judge are illustrative:

That she recognized that Edison’s request was unusual [@16]
That she questioned Edison about whether the money came from cheque scams (aka fraud) [@16]
That she was prepared to assist in the laundering of money obtained from illegal activity, be it money obtained from the sale of drugs or stolen property, or money obtained by fraud, human trafficking or any other number of illicit sources [@18]
That it “may well be that she knew the money was derived from the commission of fraud” [@20]

These findings would seem to make the conclusion that Iroguehi ought to have known fraud was a probable consequence of the scheme inevitable. Indeed, it seems the only way she did not know that a fraud would be committed is because she chose to remain wilfully blind. If so, she is imputed with actual knowledge and thus, in law, knew fraud was a probable consequence.

Whether or not the trial judge would have come to that conclusion is perhaps beside the point, the real point is that he did not consider the applicability of section 21(2). Having not done so, the trial judge, with respect, stopped short of conducting a full inquiry into the criminal liability in this case.