Court of Appeal for Ontario

Date: 20230427 Docket: C65721

Before: Hoy, Favreau and Copeland JJ.A.

Between: His Majesty the King Respondent

And: Nageshwar Yendamuri Appellant

Counsel: Peter Thorning, for the appellant Brendan Gluckman, for the respondent

Heard and released orally: April 25, 2023

On appeal from the convictions entered on September 21, 2017 by Justice Kelly P. Byrne of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Following a trial by jury, the appellant was convicted of forgery and use of a forged document.

[2] The appellant is an immigration consultant. As part of an application to restore a client’s status in Canada, the appellant filed a letter of employment with Citizen and Immigration Canada (“Immigration”). The employer who purportedly provided the letter notified the appellant that it did not write the letter and he notified Immigration that the letter was not authentic. Immigration subsequently refused his client’s application because it was submitted after the applicable 90‑day deadline.

[3] He appeals against conviction.

[4] The appellant argues that the trial judge’s charge to the jury was inadequate because it failed to highlight the Canadian Border Services Agency (“CBSA”) officer’s evidence that he understood that the appellant had been an immigration consultant for a number of years and that the 90-day rule was well known. The appellant says this evidence was relevant to whether two of the elements of forgery – whether the appellant intended the document to be considered genuine and whether he intended someone would be prejudiced by treating the letter as genuine – were made out.

[5] The appellant argues that it could have been reasonably inferred from the CBSA officer’s evidence that the appellant was an experienced immigration consultant and, as such, aware of the applicable deadline for filing his client’s application. And if the appellant filed the application knowing that it was stale-dated, it could have been further inferred that he would not have intended the letter to be considered genuine or intended that someone be prejudiced by treating it as genuine.

[6] We reject this argument.

[7] Trial judges have a broad discretion in how to charge a jury. The decision about how much evidence to review falls within that discretion.

[8] The trial judge outlined the elements of the offence of forgery. She made specific reference to the evidence of the CBSA officer that the application would have been rejected as stale-dated, regardless of the contents of the letter. She did so after reviewing the elements of the offence of forgery and she specifically instructed the jury to consider all the evidence in considering the issue of intent.

[9] At trial, the appellant’s position was that he did not make the letter or know it was false. He called no evidence. The appellant’s counsel did not put to the jury this alternative, and conflicting, theory that the appellant filed his client’s application, knowing that it would be rejected as stale-dated.

[10] We are not persuaded that the trial judge’s failure to highlight the evidence of the CBSA officer that the appellant points to on appeal resulted in an inadequate jury charge.

[11] At the hearing, the appellant abandoned a second argument, relating to the offence of Use of Forged Documents, advanced in its factum.

[12] This appeal is dismissed.

“Alexandra Hoy J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”