COURT OF APPEAL FOR ONTARIO

DATE: 20010614 DOCKET: C34861

RE: HER MAJESTY THE QUEEN (Respondent) –and– TAIWO ADUN (Appellant)

BEFORE: FINLAYSON, WEILER and GOUDGE JJ.A.

COUNSEL: Gregory Lafontaine, for the appellant

Scott C. Hutchison, for the respondent

HEARD: June 13, 2001

RELEASED ORALLY: June 13, 2001

On appeal from the conviction and sentence imposed by Justice Patrick D. White dated November 17, 1999.

E N D O R S E M E N T

[1] The appellant was convicted of three offences: 1) uttering a forged document; 2) breach of recognizance; and 3) fraud under $5,000. He was sentenced to nine months’ incarceration. He appeals both his conviction and sentence.

[2] With respect to conviction, the appellant raises two grounds of appeal. First, the appellant submits that the trial judge erred in his assessment of the identification evidence, that this error affects the verdicts on all counts, and the verdicts are unreasonable.

[3] The manager of a courier franchise complained to the police about a customer who tried to send a package to Turkey by charging the delivery cost to the account of a company, Ebony, that did not have an account with UPS as alleged. The package when opened was found to contain forged cheques. The manager did not give an initial description of the customer. The manager was shown a photo line-up and initially picked out another person as the person sending the packages but, upon being shown the next photo line-up, immediately said he was mistaken and identified the appellant as definitely being the person who sent the packages. The appellant submits that the initial misidentification of the person alleged to be the culprit means that the identification evidence is unreliable and the trial judge erred in his acceptance of it.

[4] The circumstances under which the identification was made were of good quality. The manager of the courier franchise testified that he had seen the appellant on ten occasions and personally dealt with the appellant on approximately five prior occasions. He specifically recalled that the appellant had sent packages in March, June, July and the date in question – September 23, 1999 – and on each prior occasion he had spent approximately five minutes with the person sending the packages in close proximity. He testified that he remembered the appellant because he was obnoxious and required special handling. The appellant was also one of approximately one hundred customers of Ebony.

[5] The trial judge was alive to the issue of misidentification. He found, however, that the manager was a reliable witness. It was open to him to do so. We cannot retry this case. The appeal on this ground is dismissed.

[6] Secondly, the appellant submits that not all of the elements of uttering have been made out and that at most he is guilty of attempted uttering. The submission is that the document was not in fact uttered or dealt with by the intended recipient as if it was genuine. This argument was not made to the trial judge. The Crown concedes the point.

[7] Accordingly, we would allow the conviction appeal to the extent of quashing Count 1 for uttering a forged document and, in its stead, we would substitute a conviction for the included offence of attempting to utter a forged document.

[8] As to sentence, there is no reason to depart from the joint submission of a sentence of three months in light of the above. Bearing in mind that the offence of attempted uttering is less serious than uttering, leave to appeal sentence is granted and the sentence on Count 1 is reduced to three months concurrent.

Signed: “G.D. Finlayson J.A.”

“K.M. Weiler J.A.”

“S.T. Goudge J.A.”