Court of Appeal for Ontario

Citation: R. v. Utomi, 2008 ONCA 83

Date: 2008-02-08

Docket: C42116

Before: Doherty, Borins and Lang JJ.A.

Between:

Her Majesty the Queen (Respondent)

and

Wenceslaus Utomi (Appellant)

Counsel: Anthony De Marco for the appellant J.K. Stewart for the respondent

Heard: February 8, 2008

On appeal from the conviction entered by Justice Wilson of the Superior Court of Justice, sitting with a jury, on April 26, 2004 and the sentence imposed on June 28 and 29, 2004.

APPEAL BOOK ENDORSEMENT

[1] We see no error in the trial judge’s ruling that the bank witness could testify to the “facts” referred to in the letter of July 1994 either on the basis of part recollection recorded or by using the document to refresh his memory. By the end of the evidence, both the defence and Crown were both relying on certain “facts” referred to in the letter and testified to by the witness. With the express agreement of counsel, the trial judge told the jury it could take that evidence as proof of those “facts” despite its hearsay nature. She then gave a balanced summary of the bank employee’s evidence and related the relevant parts to the respective positions of the parties.

[2] We agree with the trial judge’s ruling on admissibility. The bank employee was entitled to testify. To what extent his answer constituted inadmissible hearsay could only be determined when he testified. The hearsay concerns disappeared, however, when counsel for the appellant for sound tactical reasons, decided to agree that the employee’s evidence would be admitted for its truth even if it was hearsay. The trial judge’s instruction on that evidence was balanced and fair.

[3] Counsel alleged other errors in the charge. As a whole, the charge was balanced, clear and, in our view, fairly and effectively put the case to the jury. As is the case with any charge, one can always find different and perhaps even better ways to put certain things. That is not, however, the applicable standard of review. We see no cause for appellate intervention based on the trial judge’s instructions.

[4] The appellant did not testify. The Crown’s case was such that a reasonable jury could convict.

[5] The appeal is dismissed.