



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ajise, 2018 ONCA 494

DATE: 20180530

DOCKET: C57589

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Ajise

Appellant

R. Craig Bottomley, for the appellant

Xenia Proestos, for the respondent

Heard: March 21, 2018

On appeal from the conviction entered on June 14, 2013 and
    the sentence imposed on January 10, 2014 by Justice Thomas A. Bielby of the Superior
    Court of Justice, sitting with a jury.

Sharpe J.A.:

[1]

The appellant, a tax return preparer, was
    charged on a one count indictment with fraud over $5,000 for filing false
    claims of charitable donations on behalf of his clients. The appellant did not
    dispute that he had filed hundreds of claims for charitable deductions for
    donations of used goods to a registered charity called Tractors for Daily Bread
    (Tractors) and that he had been paid by his clients a percentage of the
    amounts claimed, usually between 10 and 15%. He testified, however, that he
    believed that the claims were valid and that they had been verified by
    Tractors.

[2]

After a twelve day jury trial, the appellant was
    convicted and sentenced to 30 months in custody.

[3]

The appellant submits that the trial judge erred
    in admitting the non-expert opinion evidence of a Canada Customs and Revenue
    Agency (C.C.R.A.) investigator, and further erred in his instruction to the
    jury on the
mens rea
component of fraud and the use that could be made
    of prior inconsistent statements. The appellant also seeks leave to appeal his
    sentence.

FACTS

[4]

In 2002, the appellant, at the time a recent
    immigrant from Nigeria, took an eight week tax preparation course and started
    his own tax preparation business. He met Mr. Eto Eto, the executive director of
    Tractors. Tractors stated purpose was to collect donations in cash and in used
    goods to alleviate poverty in Africa.

[5]

Eto referred tax clients to the appellant and
    allowed the appellant to carry on his tax preparation business at Tractors
    office. The appellant also met clients at coffee shops and in his car to
    prepare their tax returns.

[6]

The appellant carried on his tax preparation
    business for the taxation years 2003, 2004 and 2005 in the name of Datronix
    Solutions, an unincorporated entity. In 2006, he involved Ayodeji Salami in his
    tax preparation business. Salami obtained his own Efiler number but acted under
    the appellants instructions.

[7]

The Crown called eleven of the appellants
    clients, and one client of Salamis, as witnesses. They testified that the
    appellant suggested that they could reduce their income tax by making donations
    in cash and in kind to Tractors. The appellant asked them to pay him 10 to 15%
    of the amount of the donation to be claimed and also charged them a fee for
    preparing their return. Over the three year period between 2003 and 2005, the
    appellant submitted 27 tax returns on behalf of those clients claiming a total
    of $223,793 in charitable donations resulting in tax refunds of $58,138. The 10
    to 15% fee charged by the appellant was typically paid from the proceeds of the
    clients tax refund as the appellant would hold their cheques until they
    received their refunds. The clients testified that they did not think that they
    were doing anything illegal, but eleven of them admitted that they had made no
    donations in kind to Tractors. The evidence of the twelfth client was very
    vague about what he had donated. All of these witnesses testified that they had
    been reassessed and had to re-pay the C.C.R.A.

[8]

The Crown also called Seeta Maraj, a C.C.R.A.
    investigator. Maraj prepared a number of detailed spread-sheets summarizing
    information obtained from documents filed with the C.C.R.A., bank documents
    obtained pursuant to a production order and documents seized pursuant to search
    warrants executed at the Tractors premises and the residences of the appellant,
    Eto and Salami. The appellants clients tax returns were found on his
    computer. The charitable receipts issued by Tractors were found on Etos
    computer. The appellant made no objection when the spreadsheets and other
    documents were introduced in evidence.

[9]

While Marajs evidence was lengthy and the
    supporting documents were voluminous, the totality of that evidence may be
    summarized as follows. The spreadsheets itemized, name by name, the claims for
    charitable donations made in income tax returns filed by the appellant on
    behalf of clients for the taxation years 2003, 2004 and 2005, and by Salami for
    the taxation year 2005. A significant number of returns claim large amounts for
    charitable donations, averaging 20 to 30% of each clients reported income.
    C.C.R.A. records indicated that the total amount of charitable donations
    claimed by the appellants clients was $842,593 in 2003, $1,801,123 in 2004, and
    $1,830,712 in 2005. Salamis clients claimed $549,028 in 2005. The refunds paid
    on account of those claims were for approximately $1,400,000.

[10]

A spreadsheet found in Etos residence listed
    $766,030 in charitable donations for the appellants clients in 2003.
    Spreadsheets for the years 2004 and 2005 linked the claimed donations by each
    client with the cancelled cheques the appellant had received for making
    charitable claims. The total amount of charitable receipts claimed was
    $1,137,255 for 2004, and $1,226,766 for the appellant and $421,436 for Salami
    for 2005. The spreadsheets showed donation receipts for the appellants clients
    found on the Tractors computer, indicating claims for donations of $951,050 in
    2004 and $998,910 in 2005. One of the documents seized was an email from the
    appellant to Eto providing a four page list giving the names of clients and the
    amounts they had claimed for charitable donations to Tractors for the year
    2005.

[11]

By contrast, Tractors reported receiving gifts
    in the amounts of $700 for 2003, zero in 2004 and $200 in 2005.

[12]

The Crown also called Salami who testified that
    he assisted the appellant in his tax preparation business for the 2005 taxation
    year.

[13]

The appellant testified in his own defence. He
    swore that he did not know that the charitable claims he filed on behalf of his
    clients were false. He relied on Eto to verify the claims, to have the donated
    goods appraised and to ensure that proper charitable receipts were filed. He
    testified that he was shocked when the C.C.R.A. investigated his clients and
    only realized that the charitable donation claims were false when he saw that
    Tractors had reported little or no charitable donations.

[14]

The appellant conceded that he had received
    payments for 10 to 15% of the charitable donations claimed and that he had not
    reported those payments on his tax returns. The appellant testified that he had
    often held his clients cheques and only cashed them after the refund was paid.
    He denied that the payments he received from clients were for fraudulent
    charitable receipts and asserted that they were by way of commission for
    soliciting charitable donations.

ISSUES

[15]

The appellant appeals his conviction on three
    grounds:

1.

That the trial judge erred by admitting
    non-expert opinion evidence from a C.C.R.A. investigator and in his jury
    instruction relating to that evidence;

2.

That the trial erred in
    his instruction on
mens rea
; and

3.

That the trial judge
    erred in his instruction relating to prior inconsistent statements.

The appellant also seeks leave to appeal
    his sentence.

ANALYSIS

1.

Opinion evidence

[16]

The appellant argues that the trial judge erred
    by admitting what amounted to opinion evidence from Seeta Maraj, the C.C.R.A.
    investigator, who was not qualified as an expert. This argument focusses on the
    evidence relating to Exhibit 12, a spreadsheet headed Tax Evaded Calculation 
    Ajise (Efiler D6458& E0300 & Salami (Efiler D5913) that gives totals
    for false donation claims in returns filed by the appellant for 2003, 2004
    and 2005, and Salami for 2005. Exhibit 12 was filed towards the end of Marajs
    evidence in chief. The appellants trial counsel did not object to its
    admissibility. Exhibit 12 identified false donation claims totalling $842,
    593 in 2003, $1,801,123 in 2004 and $2,379,740 ($1,830,712 by the appellant and
    $549,028 by Salami) in 2005. Exhibit 12 also stated that $241,678 in tax was
    evaded in 2003, $493,445 in 2004 and $678,043 ($521,335 for the appellant and
    $156,708 for Salami) in 2005. These figures were derived from what the C.C.R.A.
    files showed had been claimed by way of charitable donations on the returns
    filed by the appellant and Salami

[17]

Maraj was asked to explain how you know those
    donations were false. She explained she had compared the amounts shown by the
    C.C.R.A. records with the amounts shown on the spreadsheets she had prepared
    based on what was found on Etos computer and based on the cancelled cheques the
    appellant had received. These spreadsheets set out, client by client, the
    charitable claims the clients had made for donations to Tractors. The total
    amounts from those lists were somewhat less than shown on Exhibit 12: for 2003,
    $766,030 rather than $842,593; for 2004, $1,137,255 rather than $1,801,123; and
    for 2005, $1,226,766 rather than $1,830,712. She explained that while she had
    tracked cancelled cheques, some of the payments to the appellant could have
    been in cash. She testified that the amounts were close enough to lead her to
    believe that all of the donation claims were false. The appellant submits that
    this amounted to opinion evidence that should not have been admitted as Maraj
    was not qualified as an expert.

[18]

The appellant also takes issue with Marajs
    evidence that she believed that one of the lists found on Etos computer had
    been prepared by the appellant. When asked why she thought that, Maraj
    explained that the list had personal information about the clients as well as
    filing information that would not have been available to Eto.

[19]

No objection was made to any of this evidence
    and the appellants trial counsel began her cross-examination of Maraj by
    asking: You indicated to us today that your belief that the receipts were
    false were, in effect, based on a couple of different things. Is that right?
    Maraj replied that her belief was based on two facts. First, that Tractors
    charity returns reported little or no charitable donations. Second, that while
    there were discrepancies between the amounts shown on Exhibit 12 and the
    amounts derived from the spreadsheets she prepared, the differences were not sufficiently
    large to give rise to concern. The appellants trial counsel probed Maraj on
    the significance of the discrepancies but Maraj maintained her position that
    all the claims for charitable donations filed by the appellant were false.

[20]

The appellant also submits that Crown counsel repeatedly
    invited the jury in her closing address to rely on Marajs 
findings
of false charitable donation claims (emphasis added).
    The prejudice to the appellant was compounded when the trial judge in his
    instructions to the jury referenced Marajs testimony that the returns filed by
    the appellant contained false donation claims in her
opinion
 (emphasis
    added). Further exception is taken to the instruction reminding the jury of
    Marajs belief that [the appellant] prepared one of the lists of the
    donations found on Etos computer, and that [the] minimal or nil donations
    reported by Tractors confirmed for Ms. Maraj her
conclusions
that claims were false.

[21]

The Crown argues that Marajs evidence was
    factual in nature and that there was no need to qualify her as an expert. The
    Crown also submits that as the appellants trial counsel did not object to the
    evidence impugned on appeal, the argument that it should be ruled inadmissible
    on appeal should not be entertained.

[22]

I am not persuaded that the admission or
    treatment of Marajs evidence at trial amounts to a reversible error for the
    following reasons.

[23]

First, Maraj is properly characterized by the Crown as a fact
    witness, called to explain how she had assembled and summarized a large volume
    of documentary evidence relating to the income tax returns filed by the
    appellant. It was only at the end of her evidence in chief, when Exhibit 12 was
    introduced, that she was asked to explain why she believed all the charitable
    claims filed by the appellants clients were false. When asked that question,
    she simply explained what the records showed. Maraj was doing nothing more than
    explaining her sources and her methodology in a way that would allow the jury to
    understand and to assess the numbers on Exhibit 12. The lists from Etos
    computer, the list on the appellants computer, and the compilation derived
    from the cancelled cheques demonstrated that a very large number of the
    appellants clients had submitted substantial claims for charitable donations
    to Tractors representing a disproportionate part of their income. The records
    showed that the appellant had been directly paid 10 to 15% of the amounts
    claimed by way of donation and that Tractors had reported receipt of virtually
    no charitable donations. While the total of the itemized, client by client
    lists of Tractors donations was less than the total showed by C.C.R.A. records
    for all returns filed by the appellant, Maraj testified that they were close
    enough to lead her to believe that all the charitable claims the appellant filed
    were false, which is why she included them in the false donation column on
    Exhibit 12. While it might have been preferable had Maraj not been asked to
    formulate her summary of the evidence she found in terms of her belief, and had
    the trial judge not referred to her opinion in his instructions, it remains
    that Marajs evidence was essentially factual in nature. It was entirely proper
    for her to explain to the jury the nature of the calculations she had made and
    the source data she used to compile Exhibit 12, which was an admissible
demonstrative
    aid designed to summarize the properly admitted evidence and to assist the
    jury in understanding the entire picture presented by voluminous documentary
    evidence:
R v. Scheel
(1979), 42 C.C.C. (2d) 31, at p. 34 (Ont.
    C.A.);
Kon Construction Ltd. v. Terranova Developments Ltd.
, 2015 ABCA
    249, 20 Alta L.R. (6th) 85, at para. 46. As with the summaries in
Scheel
,
    the usefulness of Exhibit 12 depended entirelyupon the acceptance by the jury
    of the proof of the facts upon which [it was] based:
Scheel
, at p. 34
    . The jury was in a position to assess for itself the worth of Marajs
    explanation for her calculations as they did not rest on or draw its force from
    any specialized or technical skill or knowledge: see
R. v. Hamilton
,
    2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 277.

[24]

Maraj explained how she had compiled the
    spreadsheets and what her background sources were. Marajs calculations were
    explained and her reasons for labelling the donations false were fully
    explored by defence counsel and exposed in a way that could be assessed by the
    jury as a matter of logic and common sense. Even if not every dollar of the
    $5,023,456 shown on Exhibit 12 was nailed down as being a Tractors donation,
    it was open to a trier of fact to infer that false claims comprised a
    significant portion of that total. The background sources were available for
    the jurys consideration. In her closing address, Crown counsel encouraged the
    jury to consider those sources. The trial judge also referred to the background
    sources in reviewing the evidence during his charge to the jury. The jury was
    also instructed that they could accept all, some or none of the evidence.

[25]

Marajs statement that she believed that the
    appellant was the source of one of the lists found on Etos computer has to be
    read in context. The evidence showed that the appellant had sent lists to Eto
    and, as Maraj explained, the list at issue contained information to which the
    appellant was privy and Eto was not. The question was one of fact upon which a
    non-expert witness could properly express a view: see
R. v. Graat,

[1982]
    2 S.C.R. 819, at pp. 835-839.

[26]

Second, the appellant did not object to this
    evidence at trial. The Crown suggests that this could have been a tactical
    decision as the alternative might have been to face the direct evidence of more
    of the appellants clients. Related to the failure to object is the manner in
    which the appellants trial counsel cross-examined Maraj, effectively accepting
    and joining issue with the manner in which Marajs evidence had been led. The
    appellants trial counsel was content to allow Maraj to testify as to her
    belief and then to challenge that belief on cross-examination.

[27]

The lack of objection, the way Maraj was
    cross-examined and the use of Marajs evidence during closing submissions suggests
    that Marajs evidence was not impermissible opinion evidence prejudicial to the
    position of the appellant:
R. v. Daley,
2007
    SCC 53, [2007] 3 S.C.R. 53, at para. 58;
R. v. Potts
, 2018 ONCA 294, at paras. 17, 55.

[28]

The third and related reason that leads me to
    reject this argument is how Marajs evidence relates to the substance of the
    defence advanced by the appellant. The appellant did not seriously challenge
    the contention that his clients had made false charitable donations. His
    defence was that he believed that the donations were valid and that he had
    relied on Eto to verify the donations before authorizing charitable receipts.
    Marajs evidence went to the
actus reus
of the fraud  whether false
    claims were made and in what amount. The appellants defence was that he did
    not know that the claims were false and that he lacked the
mens rea
to
    commit fraud.

[29]

Indeed, defence counsels closing address
    demonstrates that the appellant may well have wanted Marajs evidence admitted.
    He relied upon this evidence to advance the proposition that he was an
    unwitting dupe in a fraudulent scheme. As defence counsel submitted in her closing
    submissions, if he had known about the fraud, he would have taken some steps to
    cover his tracks. According to counsel, the obvious nature of the fraud
    demonstrated that the appellant did not know he was unwittingly involved in a
    fraudulent scheme:

And David Ajise, this really smart guy, this mastermind behind this
    scheme risks all of the things Ive just mentioned to you, to engage in a
    fraudulent scheme and then he makes sure to make it as obvious as possible.
    Lets just make it as obvious as possible and leave a clear paper trail leading
    to me.

Youve heard the evidence  when hes submitting these  these tax
    returns on behalf of clients, hes using his own Efile in each of the years, to
    ensure that the Canada Revenue Agency can trace back each of these returns to
    him. Let  lets just engage in a fraudulent scheme, lets plan it, lets
    intend it, but then make it as obvious as possible, so the CRA can trace it all
    back to me.



If this was not a legitimate scheme, I put to you again that Mr.
    Ajise would have warned people or signaled to people that this was not
    legitimate  theres other ways of filing.  Why make it so obvious? It just
    doesnt make any sense.



Why send these
    spreadsheets to Mr. Eto Eto ? Well the point of the spreadsheets is because
    Mr. David Ajise genuinely believed that Mr. Eto was following on the donations.

[30]

The nature of the appellants defence
    distinguishes this case from the cases relied upon by the appellant;
R. v.
    Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272 and
R. v. Lewis
, 2012
    ONCA 388, 284 C.C.C. (3d) 423.
Sekhon
was a drug importation case. The
    accused denied knowledge that the truck he was driving had a concealed
    compartment containing cocaine. The Supreme Court held that the trial judge
    erred by admitting the evidence of a police officer, who had been qualified as
    an expert, that he had never encountered a blind courier. The Court held that
    this was purely anecdotal evidence that lacked relevance and probative value
    and that did not qualify as expert evidence.
Lewis
was also a drug
    importation case where the accused denied knowledge of the drugs. A Border
    Services Inspector who had not been qualified as an expert testified that short
    notice ticketing and cash payment were strong indicators of a drug courier. This
    court held that there was danger that the jury would clothe the Inspectors
    evidence with an aura of authority that it did not deserve. In both cases, the
    impugned evidence went to the heart of the accuseds defence.

[31]

Sekhon
and
Lewis
both involved challenges to the evidence of inspectors and police officers
    testifying, in effect, that the accused is guilty and clothing that opinion
    with an aura of expertise. In both cases, the key issue was whether the accused
    knew that he was carrying drugs and in both cases, the impugned evidence denied
    the validity of that defence. Marajs evidence does not fall into that
    forbidden category. Her evidence was limited to the issue of whether false
    donation claims had been filed and, as I have found, she was entitled to give
    that evidence. She said nothing about the appellants defence of lack of
    knowledge that the claims were false and the risk posed by the improper
    evidence in
Sekhon
and
Lewis
was not present in this case.

[32]

Finally, I note
    that in her dissenting reasons, my colleague Pardu J.A. places considerable
    emphasis on the suggestion that to succeed on this ground, the respondent must
    rely on the
curative proviso
but is precluded from doing so as that argument was not explicitly
    made in either oral or written submissions. I agree that no explicit reference
    was made to s. 686(1)(b)(iii) of the
Criminal
    Code
. However, even
    assuming that resort to the proviso is required in this case, it is my view
    that the substance of the proviso point was raised. In her submissions before
    this court, Crown counsel placed considerable reliance upon the argument that the
    defence effectively conceded at trial that the donation claims were fraudulent
    and instead relied entirely on the appellants claim that he lacked knowledge
    of the fraud. On this basis, the Crown argued that even if the impugned
    evidence amounted to opinion evidence, it did not go to the only live issue at
    trial. The Crown also noted that Marajs impugned statements comprised a small
    portion of the evidence advanced during a multi-day trial, and were admitted
    without objection by defence counsel. In my view, these lines of argument
    amounted in substance to a submission that even if there was an error in
    admitting the evidence or in failing to conduct a
voir dire
,
    no substantial wrong or miscarriage of justice had occurred and the appeal
    should be dismissed on that account. As the substance of that point was
    addressed and fully argued before this court, the failure to specifically
    reference s. 686(1)(b)(iii) should not be fatal.

[33]

Accordingly, I would not give effect to this
    ground of appeal.

2.

Instruction on
mens rea

[34]

The appellant takes issue with the trial judges
    jury instruction on the
mens rea
required for fraud. The trial judge
    instructed the jury that if they were satisfied beyond a reasonable doubt that
    the government had suffered a deprivation caused by deceit, falsehood or other
    fraudulent means, they were to go to the next question:

[D]id [the appellant] intend to defraud the
    Government of Canada. This element relates to [the appellants] state of mind at
    the time he deprived the Government of Canada or allegedly deprived the
    Government of Canada of tax revenue by deceit, falsehood or other fraudulent
    means.

To prove this essential element Crown counsel
    must satisfy you beyond a reasonable doubt that [the appellant] meant to say
    and/or to do those things that amount to deceit, falsehood or other fraudulent
    means and that he knew that saying and/or doing them to put at risk the
    economic (financial) interests of the Government of Canada.
It does
    not matter whether [the appellant] thought that what they were saying and or
    doing was not dishonest or thought that neither the government nor or anyone
    else would suffer harm in the end as a result.
[Emphasis Added.]


[35]

The appellant takes issue with the italicized
    passage and argues that it effectively took away his defence of lack of
    knowledge that the charitable claims were false.

[36]

After the charge was delivered, the jury asked a
    question stating that as the appellant put so much trust in Mr. Eto they
    would like to have the last fifteen minutes of the appellants
    cross-examination played back. That request was granted. The portion of the
    cross-examination focused on how the fees were collected, recorded and divided
    with Eto and another individual, the due diligence required of a tax filer, and
    how the appellant had relied upon Eto to have donated goods appraised and
    proper receipts issued. The jurys question, according to the appellant, proved
    that they had been misled by the jury instructions as to the
mens
    rea
required for fraud.

[37]

The Crown points out that the judges
    instruction on state of mind tracks
Watts Manual of Criminal Jury
    Instructions
, 2d ed. (Toronto: Thomson
    Reuters Canada Limited, 2015),
and that the impugned passage is
    derived from the Supreme Court of Canadas decision in
R. v. Théroux
,
    [1993] 2 S.C.R. 5. The Crown further submits that when the instruction is read
    as a whole, it would have been clear to the jury that in order to convict the
    appellant, they had to be satisfied that he knew that the tax returns were
    false.

[38]

Théroux
, the
    source for the impugned passage, involved a developer who assured purchasers
    that their deposits were insured. This claim was false, the developers company
    went bankrupt, residences were not built, and there was no insurance to protect
    the purchasers who lost their deposits. The appellant was charged with fraud. McLachlin
    J. posed the issue to be resolved as follows, at p. 14:

There is no doubt that the appellant deliberately practised a
    deceitful act, constituting the
actus reus
of the offence of
    fraud.  The issue is whether the fact that he honestly believed that the
    projects would be completed negates the guilty mind or
mens rea
of the
    offence.  This requires this Court to examine the question of what
    constitutes the
mens rea
for the offence of fraud.

[39]

At p. 19, McLachlin J. applied to fraud the
    traditional criminal law principle that the mental state necessary to the
    offence must be determined by reference to the external acts which constitute
    the
actus
of the offence This means that the fact that the accused
    may have hoped the deprivation would not take place, or may have felt that
    there was nothing wrong with what he or she was doing, provides no defence.
    Once the
actus reus
is made out,
Théroux
holds that it need
    only be determined that an accused knowingly undertook the acts in question,
    aware that deprivation, or risk of deprivation, could follow as a likely
    consequence: see pp. 19-20.

[40]

The fact that the developer honestly believed at
    the time he made the representation that the houses would be built provided no
    defence. He had knowingly made a false statement to induce the buyers to enter
    contracts and provide their deposits and he therefore had the
mens rea
for
    fraud.

[41]

I agree with the appellant to this extent: on
    the facts of this case, it was not strictly necessary to include the impugned
    passage. Neither the Crown nor the defence suggested that the appellant hoped
    for an outcome that would not result in loss to the government. The instruction
    would have been adequate without the impugned passage.

[42]

However, for the following reasons, I do not
    agree that including this sentence deprived the appellant of his defence of
    mistaken belief.

[43]

I am satisfied that when the instruction is read
    as a whole, it was made apparent to the jury that they had to be satisfied
    beyond a reasonable doubt that the appellant knew that he was submitting false
    charitable donation claims. The jury were instructed that the Crown had to
    prove beyond a reasonable doubt that [the appellant] intended to defraud the
    government of Canada and to acquit if the Crown failed

to prove beyond a reasonable doubt that he intended to
    deprive the Government of Canada of tax revenue. The judge fairly outlined the
    appellants evidence that he believed that the donations were valid and the
    jury would have understood that any doubt on the point of the appellants
    knowledge of the falsity of the donations had to result in acquittal. A
R.
    v. W.(D.)
caution was given and the jury were instructed:

[I]f you believe [the appellants] evidence
    and accept it as true, that he did not intentionally defraud the Government of
    Canada, you must find him not guilty of the offence. Even if you do not believe
    his evidence, if it leaves you with a reasonable doubt about the crime as Ive
    defined it, you must find him not guilty of the offence.

[44]

I am not persuaded that the arguably
    unnecessary inclusion of the one sentence mandated by
Théroux
distorted or detracted from the essential point made clear by the balance of
    the instruction, namely, that the Crown had to prove beyond a reasonable doubt
    that the appellant knew that the charitable donation claims were false.

[45]

Second, the draft charge was vetted with
    counsel. Mid-way through the instruction and during a break, the appellants
    trial counsel expressed concern about the
mens rea
instruction, but
    did not object to the passage challenged on appeal. The trial judge considered
    her objection and agreed to add the following:

[T]he real issue to be determined is whether [the
    appellant] knowingly participated in the scheme, claiming for his clients
    donations he knew were not made and profiting from the scheme by taking a share
    of ten to 15 percent of the monies collected.

[46]

Counsel indicated that the addition satisfied
    her concerns on
mens rea
and made no further objection.

[47]

Accordingly, I would not give effect to this
    ground of appeal.

3.

Instruction on prior inconsistent
    statements

[48]

The appellant submits that the trial judge erred
    by failing to instruct the jury that if a witness adopted a prior inconsistent
    statement as true, the jury could use those prior inconsistent statements for
    their truth.

[49]

In my view, there is no merit to this ground of
    appeal for the simple reason that neither of the two Crown witnesses identified
    by the appellant adopted their prior inconsistent statements as true. Monique
    Robinson, one of the appellants former clients, had told investigators that
    goods were donated to Tractors, but testified at trial that she was mistaken as
    her husband had explained that the goods were given to a friend. Clive Williams,
    another former client of the appellants, told the investigator that he had
    donated old furniture to Tractors and while attempt was made to have him adopt
    that statement on cross examination, he did not do so.

4.

Sentence appeal

[50]

The trial judge gave detailed reasons for sentencing
    the appellant to 30 months in custody. He noted that the appellant has a family
    of three children, many positive references from his friends, church and
    community and that the appellant would face deportation without a right of
    appeal if sentenced to six months imprisonment or more. The appellant had a
    prior and dated conviction for fraud but had received a pardon for that
    offence. The trial judge reviewed the case law and determined that a sentence
    of 30 months custody was appropriate.

[51]

The sole ground for the sentence appeal is that
    even if the conviction is upheld on the basis of the evidence of the
    appellants clients, it is still open to this Court to find that the trial
    judge erred in relying on Marajs evidence to conclude that the amount involved
    in the fraud was in the $1 million range. The sentence should therefore be
    reduced to 6 months less a day.

[52]

It was only at the sentencing stage that the
    appellant raised any issue as to the fact that Maraj had not been qualified as
    an expert. The trial judge dismissed that objection, holding that it was not
    necessary to qualify her as an expert as she had simply [re]ported on her
    findings and her evidence as to the total amounts in issue was not seriously
    challenged. The trial judge added that there was no need to call all of the appellants
    clients who had claimed false donations, since [a] sampling was sufficient to
    prove the fraud and he was satisfied that it had a value of over $1 million.

[53]

It is not necessary to repeat here what has
    already been said in relation to the conviction appeal as to the magnitude of
    this fraud. Simply put, I am satisfied that the trial judge did not err in
    finding that when the
viva voce
evidence of the appellants clients is
    considered together with the documentary evidence, the Crown did prove fraud in
    the range of $1 million. Even if one were to reject the Crowns contention that
all
of the charitable donations claimed in returns filed by the
    appellant were false donations, the Crown established that the appellant
    submitted a very large volume of claims for charitable donations to Tractors on
    behalf of his clients and that the appellant had been paid 10 to 15% for each
    of those claimed donations.

[54]

Further, the trial judge took into account the
    immigration consequences of the sentence he imposed and a term of imprisonment
    of more than 6 months was very much in line with the principles enunciated by
    this Court in
R. v. Leo-Mensah,
2010 ONCA 139, 101 O.R. (3d) 366.

[55]

I would grant leave to appeal the sentence but
    dismiss the sentence appeal.

DISPOSITION

[56]

For these reasons, I would dismiss the appeal
    from conviction, grant leave to appeal sentence but dismiss the sentence
    appeal.

Robert
    J. Sharpe J.A.

I
    agree Fairburn J.A.

Pardu J.A. (Dissenting):

[57]

The appellant or his agent prepared and filed
    hundreds of tax returns in 2003, 2004 and 2005. The taxpayers claimed they had
    made charitable donations of $5,023,456 to Tractors for Daily Bread
    (Tractors). A Canada Customs and Revenue Agency (C.C.R.A.) investigator, Seeta
    Maraj, who was trained as a general accountant, testified that in her opinion
    all of the donation claims were false, resulting in tax evaded of
$1,413,166.
There was no ruling, however, allowing her to give
    opinion evidence. She based her opinion that the charitable donations were
    false on two essential bases:

1.

The Tractors charitable
    returns reported only nominal amounts of tax receipted gifts.

2.

The donations claimed by the taxpayers were
    disproportionately large compared to their incomes.

[58]

The differences between the returns filed by the
    appellant and those filed by Tractors do not in and of themselves lead to the
    inference that the appellant filed false returns. Either the appellant or
    Tractors or both could have filed false returns.

[59]

The appellants defence was that to his
    knowledge, the donation claims were valid, and that he did not know that
    charitable donations were not in fact made to Tractors, and did not know that
    the donation receipts issued by Tractors were false. There were some appraisals
    establishing the value of goods donated to Tractors.

[60]

Maraj had no personal knowledge as to whether
    the taxpayers had really donated money or goods to Tractors. She began her
    evidence by explaining charts that organized data she had retrieved from the
    tax returns prepared by the appellant, Tractors donation records, bank records
    of the appellant, and computer records. I agree that this was factual
    information not requiring a
voir dire
. Partway
    through her examination in chief, however, rather than eliciting the factual
    information collected, the Crown began to ask leading questions as to the
    nature of the donations:

First of all I
    just want to be clear, the  the amounts of   in total false donations
    claimed, as well as the total tax evaded due to false donations that you just
    mentioned.those amounts can be found at Tab 7 and 8 of the trial book.

[61]

This theme was repeated in many questions and
    answers that followed. In her examination in chief, Maraj went on to testify
    how she came to her opinion that the donations were false. She had interviewed
    several taxpayers who told her that they had not dealt with Tractors
    themselves. In cross examination, she explained that although there were some
    discrepancies between the donation amounts claimed and the amounts indicated on
    the spreadsheets she prepared as part of her investigation, the differences
    were not sufficiently large to give rise to concern. Marajs estimation of the
    total donation amounts claimed was off by roughly $600,000 but Maraj testified
    she could still conclude that the charitable donation claims were false, particularly
    given that the donations claimed were large in relation to the taxpayers
    reported net income for 2004, for example.

[62]

Crown counsel repeatedly invited the jury in her
    closing address to rely on Marajs 
findings
of
    false charitable donation claims (emphasis added). In his instructions to the
    jury, the trial judge referenced Marajs 
opinion
 and 
belief
(emphasis added) and
    reminded the jury that the evidence confirmed Marajs 
conclusions
(emphasis added) that the claims were false.

[63]

The
    opinion evidence of non-expert witnesses, or lay opinion evidence, is generally
    inadmissible. In
R. v. D. (D.)
, 2000 SCC 43, [2000] 2 S.C.R. 275, at
    para. 49, the Supreme Court of Canada summarized this long-standing
    exclusionary rule:

A basic tenet of our law is that
    the usual witness may not give opinion evidence, but testify only to facts
    within his knowledge, observation and experience. This is a commendable
    principle since it is the task of the fact finder, whether a jury or judge
    alone, to decide what secondary inferences are to be drawn from the facts
    proved.

[64]

While
    the history of the lay opinion evidence rule has been fraught with ambiguities,
    in Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuersts,
The Law
    of Evidence in Canada
, 5th ed. (Toronto: LexisNexis, 2018), at p. 820, its
    receivability is described in these terms:

Courts now have greater freedom to
    receive lay witnesses opinions if: (1) the witness
has
    personal knowledge of the observed facts
; (2) the witness is in a better
    position than the trier of fact to draw the inference; (3) the witness has the
    necessary experiential capacity to draw the inference, that is, form the
    opinion; and (4) the opinion is a compendious mode of speaking and the witness
    could not as accurately, adequately and with reasonable facility describe the
    facts she or he is testifying about. But as such evidence approaches the
    central issues that the courts must decide, one can still expect an insistence
    that the witnesses stick to the primary facts and refrain from giving their
    inferences. It is always a matter of degree. As the testimony shades towards a
    legal conclusion, resistance to admissibility develops. [Emphasis added.]

[65]

Although the distinction between fact and opinion evidence may be
    tenuous,
in
R. v. Graat
, [1982] 2 S.C.R. 819, at paras. 51-52,
    the Supreme Court suggests that non-expert opinion evidence is inadmissible
    unless: (1) by permitting the lay witness to testify in the form of an opinion,
    the witness is able more accurately to express the facts he or she perceived or
    (2) the facts from which a witness received an impression were too evanescent
    in their nature to be recollected or too complicated to be separately and
    distinctly narrated.

[66]

The court stated, at para. 47, that 
[e]xcept for the sake of
    convenience there is little, if any, virtue in any distinction resting on the
    tenuous, and frequently false, antithesis between fact and opinion. The line
    between fact and opinion is not clear.

[67]

Academics
    have made the same observation, for example, as described by S. Casey Hill,
    David M. Tanovich and Louis P. Strezos in
McWilliams Canadian Criminal
    Evidence,
5th ed. (Toronto: Thomson Reuters, 2017), at p. 12-9:

Whatever the distinctions in
    justification for the admission of a compendious statement of fact and opinion
    where the facts are too subtle or complicated to be narrated separately and
    distinctly, the lay witness exception to the opinion evidence exclusionary rule
    requires the witnesss personal or direct acquaintance with the particular
    subject-matter and therefore some assurance of competence in source of
    knowledge. As well, the witness must have incidentally drawn inferences from
    observed data necessarily expressible in only abbreviated or conclusory form as
    opposed to a narration of individual factual observations or perceptions.

[68]

In
Ganges Kangro Properties Ltd. v. Shepard,
2015 BCCA 522, 51 C.L.R.
    (4th) 1, at para. 76 the court makes clear that the compendious statement of
    facts exception is limited to inferences drawn by non-expert witnesses who have
    personally observed the facts from which their inferences are drawn.

[69]

In
    this case, Maraj (1) did not have personal knowledge of the observed facts 
    rather, she was asked to formulate her summary of the evidence in terms of her
    belief; (2) was in no better position than the jury to draw inferences from the
    evidence of the 12 taxpayers who testified combined with the raw data she
    collected; (3) had the experiential capacity to draw the inference  however,
    this is precisely what made the statement increasingly prejudicial; and (4)
    could have described the facts without testifying to the central question at
    issue. I am not persuaded that the jurors would inevitably have come to a
    conclusion of guilt absent her evidence.

[70]

As
    pointed out by Strathy C.J.O. in
Meady v. Greyhound Canada Transportation
    Corp.
, 2015 ONCA 6,
329 O.A.C. 173, at para. 37:

There has been
    growing recognition of the responsibility of the trial judge to exercise a more
    robust gatekeeper role in the admission of expert evidence  see: Lisa
    Dufraimont, New Challenges for the Gatekeeper: The Evolving Law on Expert
    Evidence in Criminal Cases (2012) 58 C.L.Q. 531; and
Report of the
    Inquiry into Pediatric Forensic Pathology in Ontario
(Toronto:
    Queens Printer for Ontario, 2008), vol. 3, c. 18: Role of the Court. This
    observation holds true for both civil and criminal contexts. Although much of
    the discussion has focused on increasing scrutiny of threshold reliability at
    the gatekeeper stage, it is equally important to ensure the evidence is
    genuinely necessary.

[71]

Here, it is difficult to see how the opinion evidence was necessary,
    but for the Crowns failure to call anyone from Tractors.
The appellant
    testified he did not know that charitable donations were not made, and the
    Crown did not call the director of Tractors with whom the appellant dealt.
    Proof that the charitable donations were not made was essential to the Crowns
    case.

[72]

Marajs opinion that the charitable donations
    claimed were false was expert evidence that required a
voir dire
to determine its admissibility.

[73]

The trial judge erred in failing to conduct a
voir
    dire
to make this determination or else, in failing to
    exclude the evidence absent a ruling.

[74]

I acknowledge that defence counsel failed to
    object to the admission of the evidence. On this record, however, I cannot
    conclude that defence counsels failure to object amounted to recognition that
    the evidence would likely be admitted following a
voir dire
, was inadvertent, or tactical. If there was agreement, that should
    have been noted for the record. I also agree that by the end of the trial,
    defence counsel focused on the mental element of the offence, knowledge.

[75]

As indicated earlier, I agree that the jury
    could have drawn inferences about fraud, in respect of the returns filed by the
    appellant on behalf of the taxpayers who testified, from the summarized raw
    data submitted, together with the evidence of those taxpayers, without Marajs opinion
    evidence. However, I am not certain that they would have done so without the
    weight of the opinion evidence and the resulting affirmation that all 442 tax
    returns contained false charitable donation receipts.

[76]

Had the trial judge admitted Marajs evidence as
    opinion evidence, he would have instructed the jury as to the significance of
    factual assumptions underlying her opinion, notably, the assumption that
    Tractors returns were correct.  The jury was concerned about this issue, and
    asked a question about the trust the appellant placed in Tractors.

[77]

The majority relies upon the absence of any
    substantial wrong or miscarriage of justice to dismiss the appeal, in the event
    the judge erred in admitting this evidence.

[78]

I would not apply the proviso for two reasons.

[79]

The Crown did not invoke the proviso in
    either its factum or in oral argument. The proviso is embodied in s. 686 (1)
    (a) (ii) and s. 686 (1) (b) (iii) of the
Criminal Code,
R.S.C.,
    1985, c. C-46
for errors of law. Even if a trial judge has
    made a wrong decision on a question of law, the court may dismiss an appeal if
    it is of the opinion that no substantial wrong or miscarriage of justice has
    occurred.

[80]

This court has held that it should not invoke
    the proviso on its own motion:
R. v. P.G.
,
    2017 ONCA 351,

138 O.R. (3d) 343
, at paras. 13-15. The Crowns oral and written argument on appeal
    was that Marajs opinions amounted to factual evidence for which a
voir
    dire
was not required, and that no error was committed by
    the trial judge in admitting this evidence without a
voir dire
.  I would not infer from this argument that the Crowns position
    was also that even if there was an error, no substantial wrong or miscarriage
    of justice resulted, particularly since the Crown did not address an essential
    element of the test for application of the proviso, whether the jury verdict
    would have necessarily been the same, absent the legal error:
R. v.
    Mahoney,
[1982] 1 S.C.R. 834, at para. 17.

[81]

Secondly, I am not satisfied that the verdict
    would have necessarily been the same, but for the error in admitting the
    opinion evidence.  This test is applied strictly, as noted in
Mahoney
, at para. 18: [i]t is abundantly clear, in my view, that the
    discretion involved in its application is narrowly limited by statute to cases
    where the court of appeal has found an error or errors of law at trial, and its
    exercise depends upon the application of the strict legal test affirmed in the
authorities and firmly imbedded in the
    law.

[82]

The rigor of the test
    for application of the proviso was highlighted by Epstein J.A. in
R.
    v. Brown
,
2018 ONCA 481,
at paras. 75-76 as follows:

First, use of the curative proviso is appropriate where the
    error at first instance is harmless or trivial:
Sekhon
, at para. 53.
    The overriding question guiding this inquiry is whether the error on its face
    or in its effect was so minor, so irrelevant to the ultimate issue in the
    trial, or so clearly non-prejudicial, that any reasonable judge or jury could
    not possibly have rendered a different verdict if the error had not been made:
R. v. Van
, 2009 SCC 22, [2009] S.C.R. 22, at para. 35. When a case
    involves multiple errors at first instance, the cumulative impact of those
    errors can be relevant to determining whether the harmless or trivial test is
    satisfied:
R. v. Bomberry
, 2010 ONCA 542, 258 C.C.C. (3d) 117, at
    para. 79;
R. v. Hill
, 2015 ONCA 616, 23 C.R. (7th) 224, at para. 102.

The curative proviso may also be applied in cases involving
    more serious errors, where the evidence is so overwhelming that a reasonable
    and properly instructed jury would inevitably convict:
Sekhon
, at
    para. 53;
Van
, at para. 36. This inquiry does not turn on the gravity
    of the trial judges errors, but on the strength of the Crowns case.
    Overwhelming evidence has been described as a high standard, and
    substantially higher than the requirement that the Crown prove its case
    beyond a reasonable doubt at trial:
R. v. Trochym
, 2007 SCC 6,
    [2007] 1 S.C.R. 239, at para. 82. These onerous thresholds flow from the
    difficulties appellate courts inevitably face in evaluating the strength of
    the Crown's case retroactively, without the benefit of hearing the witnesses'
    testimony and experiencing the trial as it unfolded:
Van
, at para.
    36. Accordingly, any measure of doubt concerning the strength of the Crowns
    case should enure to the benefit of the appellant.

[83]

The consequences of a
    criminal conviction may be catastrophic. Where there is legal error, unless the
    court is satisfied that the verdict would necessarily have been the same, the
    proviso
cannot be applied to uphold the conviction.

[84]

Here, I am not convinced that the jury would
    have rendered the same verdict, absent the opinion evidence of Maraj. The
    appellants credibility in the eyes of the jury may have suffered when weighed
    against that of an apparent expert. It is arguable that the evidence was not
    necessary and would not have met the test for admissibility of expert opinion
    evidence.

[85]

I would accordingly allow the appeal and direct
    a new trial. I need not address the other arguments advanced on appeal.

Released:
    May 30, 2018

G. Pardu J.A.


