




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 Redicks 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 appellants 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 Redicks opinion and other evidence
    to support the Crowns 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.
    Igbinedions 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 Redicks evidence was admissible for a very limited purpose. 
    As the Supreme Court of Canada said in
R. v. Van
, [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 Redicks 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 Redicks 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 Redicks 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. 


