CITATION: R. v. Igbinedion, 2011 ONCA 571
DATE: 20110902
DOCKET: C47576
COURT OF APPEAL FOR ONTARIO
Rosenberg, Gillese and LaForme JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Odion Igbinedion
Appellant
Odion Igbinedion, in person
J. Wilkinson, duty counsel, for the appellant
Deborah Krick, for the respondent
Heard: August 16, 2011
On appeal from conviction entered by Justice Carolyn Horkins of the Superior Court of Justice, sitting with a jury, dated May 31, 2007.
E N D O R S E M E N T
[1] The appellant, with the assistance of duty counsel, appeals from his conviction for fraud by a court composed of Horkins J. and a jury. At the conclusion of the oral hearing in this appeal we indicated that the appeal was allowed and a new trial ordered with reasons to follow.
[2] While duty counsel raised several grounds of appeal we find it necessary to deal with only one issue, the charge to the jury on the use to be made of Detective Redick’s evidence. The case against the appellant was relatively straight-forward. The Crown alleged that the appellant knowingly deposited a forged cheque into his business account. Once the cheque had cleared, the appellant began to withdraw increasingly larger amounts of money from the account, until the bank realized that the cheque was forged. At that point, the police were notified and when the appellant attended at the bank, he was arrested.
[3] The appellant’s defence also should have been relatively straight-forward. His position was that a business associate had given him the cheque to repay a debt and he believed the cheque was genuine. Regrettably, the appellant, who was not represented by counsel, decided to make the manner in which the case was investigated an issue in the case. Accordingly, he called the officer in charge of the investigation, Detective Redick, as his own witness. He then proceeded to ask him a series of very ill-advised questions as to why the officer arrested him and why he did not conduct certain other investigations. The result was that prejudicial opinion and investigative hearsay was placed before the jury. Further, the trial judge failed to give the jury a limiting instruction as to the use to be made of that evidence and in fact invited the jury to use Detective Redick’s opinion and other evidence to support the Crown’s allegation that the appellant must have known that the cheque was forged.
[4] Thus, the trial judge instructed the jury, in part, as follows:
The cheque cleared the five-day hold period, and then, as you will see from the account printout, a series of withdrawals started. Detective Redick told you that the withdrawal pattern in Mr. Igbinedion’s business account is typical of what occurs when a counterfeit cheque is deposited and a person wants to get the money. That person usually tests the water to see if they will get away with the fraud. They start with small withdrawals, and if there are no problems, the withdrawals will escalate. That is the type of activity that you will see when you look at the account printout.
And
The detective told you that he had investigated the names on the money orders, and his search told him that Wale Phillips was a person involved in another fraud and in possession of property obtained by crime.
[5] Detective Redick’s evidence was admissible for a very limited purpose. As the Supreme Court of Canada said in R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 at para. 26:
Lower courts have also decided that a trial judge who admits evidence of this kind must provide the jury with a limiting instruction as to its permissible and impermissible uses. The jury must be informed that they can only use evidence of this type for the limited purpose of setting out a narrative of the procedures that were followed in the investigation. They must be cautioned against relying on hearsay and opinion evidence that would be otherwise inadmissible in their determination of the guilt or innocence of the accused (Dhillon, at para. 51; Mallory, at para. 92).
[6] There was no suggestion that Detective Redick’s evidence was admissible as expert opinion evidence. His evidence about Wale Phillips was hearsay, highly prejudicial and not admissible for its truth as an item of evidence from which the jury could find that the appellant knew the cheque was forged. The jury should have been directed in the clearest of terms that they could not use Detective Redick’s testimony about his investigation as evidence of guilt.
[7] This is not a case where the provisio in s. 686(1)(b)(iii) of the Criminal Code can be applied. Detective Redick’s opinion gave the jury a clear route to conviction. Without that opinion the case against the appellant was far from strong. And, as we have said, the reference to Wale Phillips was highly prejudicial hearsay.
[8] Accordingly, as indicated, the appeal is allowed, the conviction quashed and a new trial ordered. We understand that the appellant has already served the conditional sentence imposed by the trial judge. It will be for the Crown to determine whether in those circumstances the interests of justice require a new trial. We wish to thank counsel for their very helpful submissions and especially Mr. Wilkinson who assisted the appellant as duty counsel.
Signed: “M. Rosenberg J.A.”
“E.E. Gillese J.A.”
“ H. S. LaForme J.A. ”