This case involves six defendants who were all charged with some or multiple forms of organized crime offences in addition to other serious criminal offences. Three of the defendants, namely Mr Kalonji, Mr Henry and Ms Galbraith, were charged and convicted of conspiracy to commit fraud. Mr Kalonji, with two other men, was running a criminal organization whose main activity was committing account take over frauds. To accomplish this fraud, group members would open new accounts (so-called complicit accounts) or joint accounts that were in some way linked to victim accounts (often identified by hackers that gained illegal access to bank systems or by insiders of the bank). Money was then transferred from the victims’ accounts to the joint or complicit accounts and subsequently withdrawn from the accounts by associates. Intercepted communications of one of the defendants, Mr Kalonji, revealed that he used hackers to identify victim accounts and manipulate bank accounts for fraudulent reasons (e.g., transfer money from victim to complicit accounts).
Ontario Court of Justice
In this case, the Justice analysed the elements of the conspiracy to commit fraud as well as of the criminal organization.
The Justice reiterated that conspiracies “include an agreement by two or more persons to do an unlawful act. The participants in the conspiracy must all have an intention to agree to commit an unlawful act and the agreement must be completed. There must also be a common design. Ultimately, the essence of a criminal conspiracy is proof of an agreement.” While the co-conspirator must not be aware of all details of the conspiracy, she or he must demonstrate knowledge of its general structure. While the Justice was satisfied that these elements fit the evidence against Mr Kalonji, Mr Henry and Ms Galbraith, the Justice was not satisfied beyond reasonable doubt that Ms Robinson and Ms Munyenga agreed to join in the broader conspiracy and that Mr Simmons-McKenzie was even a member of this conspiracy at all.
The case further involved different types of criminal association related offences in relation to fraud, namely instruction, commission and participation of/in fraud for the benefit of a criminal organization. The Justice noted that the first step in determining the existence of such offences would be determining if there was in fact a criminal organization involved. The judgment refers to the definition of an organized criminal group pursuant to Section 467.1 (1) of the Criminal Code, which is consistent with the definition under UNTOC. The judgment refered to earlier cases and reiterated that this definition must, however, be applied flexibly and that while “some form of structure and degree of continuity” is required, even a minimal amount would suffice. The Justice, nonetheless, held that, while she had no difficulty finding that Mr Kalonji worked together with other persons who were not charged, there were “too many uncertainties about the scope of the account take over frauds and the different parties involved to allow” her to determine the existence of an organized criminal group.
In conclusion, the Justice found three defendants guilty and three defendants not guilty of conspiracy to commit fraud. In addition, the Justice found all of the defendants not guilty of the offences related to an organized criminal group. More details on the charges and verdicts can be found below.
Section 467.13 of the Criminal Code
Instructing commission of offence for criminal organization
The defendant was charged with instructing criminal organization fraud.
Section 467.12 of the Criminal Code
Commission of offence for criminal organization
The defendant was charged with committing criminal organization fraud.
Participating in activities for the purpose of enhancing the ability of the criminal organization to commit the offence of fraud
Trafficking in identification for the benefit of a criminal organization
While Mr Kalonji was found not guilty of the offence as charged, he was found guilty of trafficking in identification as a lesser/included offence than the one charged due to the Justice having reasonable doubt about the presence of a criminal organization in relation to this charge.
Fraud
Conspiracy to commit fraud
Conspiracy to traffic in firearms
Failing to comply with a recognizance
Section 467.12 of the Criminal Code
Commission of offence for criminal organization
Participating in activities for a criminal organization
Trafficking in identification for the benefit of a criminal organization
Fraud
The Justice reserved her decision on the matter until she would hear further argument.
Conspiracy to commit fraud
Participating in activities for a criminal organization
Conspiracy to commit fraud
Participating in activities for a criminal organization
Conspiracy to commit fraud
Participating in activities for a criminal organization
Conspiracy to commit fraud
Failing to comply with a recognizance
Section 467.12 of the Criminal Code
Commission of offence for criminal organization
Participating in activities for a criminal organization
Fraud
Conspiracy to commit fraud
Conspiracy to traffic in firearms
Ontario Court of Justice
Comments
Intercepted communications, including calls and blackberry messages (referred to as "BBMs" in the judgment), were presented as evidence before court. The intercepted communications were often in guarded language and often involved slang words, suggested to be "coded language". In conjunction with expert evidence and the bank records, the Justice was able to draw conclusions from these communications.