Court of Appeal for Ontario
Before: Doherty, Hourigan and Roberts JJ.A.
Between:
Her Majesty the Queen Respondent
and
Bruno Anigwe Appellant
Counsel: Louis P. Strezos and Sherif Foda, for the appellant Rick Visca, for the respondent
Heard and released orally: October 7, 2016
On appeal from the conviction entered by a jury presided over by Justice Lemon of the Superior Court of Justice, dated December 5, 2013 and on a sentence imposed on May 2, 2014.
ENDORSEMENT
1This is an appeal from conviction. Counsel for the appellant has advised that the sentence appeal is abandoned.
2There are two arguments put forward on the conviction appeal.
The failure to confront the appellant with the alleged motive to fabricate
3We do not agree that the “rule” in Brown v. Dunne was engaged. The co-accused testified before the appellant. The appellant knew exactly what the co-accused had said about the meeting in question and was in a position to respond through his evidence to any factual assertion made in that evidence with which the appellant did not agree.
4Counsel for the co-accused’s arguments in his closing that the appellant had a motive to misrepresent his role in the conversation, whereas the co-accused had no motive to identify the appellant as opposed to the third party as the primary speaker in the meeting, was an argument that was open on the evidence. Counsel for the appellant had every opportunity to respond to that argument in his closing if he saw fit. We see no failure to properly allow the appellant to address the position taken by the co-accused and no unfairness in the manner in which the co-accused presented his position to the jury.
The failure to give an “Oliver” instruction
5We do not agree necessarily that this was a case in which an Oliver instruction would have been appropriate. In any event, no such instruction was requested. In these circumstances, absent any request by counsel for the appellant that the trial judge instruct in accordance with Oliver, his failure to do so cannot be characterized as non-direction amounting to misdirection.
6The appeal is dismissed.
“Doherty J.A.”
“C.W. Hourigan J.A.”
“L.B. Roberts J.A.”