David Ajise v. Her Majesty the Queen

(Ontario) (Criminal) (As of Right)


Criminal law - Fraud over $5,000 - Opinion evidence - Curative provision - Whether trial judge erred in admitting non-expert opinion evidence and in his jury instruction in relation to that evidence - Whether the majority of the Court of Appeal erred in allowing the Crown to rely on the curative provision when it had not expressly raised its intention to do so in its factum - Criminal Code, R.S.C. 1985 c. C-46, s. 686(1)(b)(iii).


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Mr. Ajise, appellant, was convicted of fraud over $5,000 for filing false claims of charitable donations in his clients’ tax returns. He appealed his conviction on two grounds. First, he claimed the trial judge should not have admitted opinion evidence given by the Canada Customs and Revenue Agency investigator because she was not qualified as an expert. Second, he argued the trial judge did not properly instruct the jury on the mental element of the offence and the use that could be made of certain prior inconsistent statements. The majority of the Court of Appeal dismissed the appeal. Pardu J.A., dissenting, would have allowed the appeal and ordered a new trial. In her view, the investigator’s opinion that the donations claimed were false was expert evidence that required a voir dire on admissibility, and the trial judge erred in failing to conduct a hearing. Since the Crown did not expressly argue the application of the curative provision, and because, in her view, the verdict would not necessarily have been the same but for the error relating to the opinion evidence, Pardu J.A. would not have applied the curative provision.

Lower Court Rulings

June 14, 2013
Ontario Superior Court of Justice

Appellant convicted of fraud over $5,000
May 30, 2018
Court of Appeal for Ontario

C57589, 2018 ONCA 494
Appeal dismissed