COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olufeko, 2022 ONCA 308

DATE: 20220419

DOCKET: C66026 & C66759

van Rensburg, Nordheimer and
    George JJ.A.

Docket:
C66026

BETWEEN

Her Majesty the Queen

Respondent

and

Saidi Sanni Olufeko

Appellant

Docket:
    C66759

AND BETWEEN

Her Majesty the Queen

Respondent

and

Tajudeen Fanikayode

Appellant

Angela Ruffo and Joanne Collins, for
    the appellant Saidi Sanni Olufeko

Jeffery Couse, for the appellant
    Tajudeen Fanikayode

James Clark, for the respondent

Heard: February 3, 2022, by
    video conference

On appeal from the convictions entered
    on January 11, 2018, and the sentence imposed on March 27, 2018, by Justice E. Ria
    Tzimas of the Superior Court of Justice, sitting with a jury, with reasons for sentence
    reported at 2018 ONSC 2010.

George J.A.:

overview

[1]

On June 14, 2014, Canada Border Services Agency
    officers intercepted a shipment at Pearson International Airport. The shipment
    contained carpets, some of which had heroin secreted inside. All told, approximately
    eight kilograms of heroin was seized. Once officers from the Royal Canadian
    Mounted Police (RCMP) became involved, a general warrant to carry out a
    controlled delivery of the shipment was obtained, as well as wiretap
    authorizations for two phone numbers.

[2]

The appellants  Saidi Olufeko (Olufeko) and
    Tajudeen Fanikayode (Fanikayode)  together with co-accused Akeem Onaola
    (Onaola) and Peter Ajiri (Ajiri) were charged with importation of heroin,
    conspiracy to import heroin, possession of heroin for the purpose of
    trafficking, and conspiracy to possess heroin for the purpose of trafficking.

[3]

Onaola pleaded guilty to importation and
    possession for the purpose of trafficking. The other three accused proceeded to
    trial, where Ajiri was acquitted. Olufeko was found guilty on all counts.
    Fanikayode was found guilty of conspiracy to possess heroin for the purpose of
    trafficking and possession for the purpose of trafficking. Both appeal against
    their convictions. Olufeko also appeals against his sentence, which was 16
    years in the penitentiary reduced by the time spent in pre-trial custody.

[4]

The appellants advance various grounds of
    appeal. Olufeko argues that the trial judge,

i)

erred in allowing the Crown to elicit a police
    officers in-court identification, or, alternatively, by failing to provide a
    strong accompanying caution;

ii)

failed to give an adequate
W.(D.)
[1]
instruction in relation to exculpatory evidence;

iii)

improperly criticized his counsels closing to
    the jury; and

iv)

in respect of sentence, erred in finding that
    there were no mitigating factors, which led to the disparate treatment of
    immigration consequences as between himself and Fanikayode, who received a
    12-year sentence.

[5]

Fanikayode argues,

i)

that the trial judge delivered an unbalanced
    jury charge, which favoured Ajiri and deprived him of a fair trial;

ii)

that the trial judge improperly admitted opinion evidence on
    counter-surveillance techniques, or, in the alternative, erred by not providing
    a limiting instruction about its use; and

iii)

that the verdict is unreasonable.

evidence at trial

[6]

Onaola testified on behalf of the defence. He said
    that he was the only one of the four involved in the importation scheme and
    that Olufeko, Fanikayode, and Ajiri knew nothing about it.

[7]

He advised that in 2004, while working in New
    York City, he became acquainted with a man named Joseph Goldstein. He testified
    that Mr. Goldstein hired him to ship carpets from Pakistan to Toronto on his
    behalf. Onaola testified that, in January 2014, he agreed to ship carpets that
    contained heroin to Canada. To that end, a fake company (with a Hamilton
    address) was set up and listed as the consignee. Onaola advised that, in
    addition to a $50,000 payment, he was told he could take possession of some of
    the carpets to do with as he wished. In respect of this shipment, it was his
    understanding that heroin would be concealed in three of the carpets and that
    the others would be his. Onaola testified that he was going to gift one of these
    extra carpets to each of his friends Fanikayode and Olufeko, and to Olufekos
    friend, Ajiri.

[8]

The intercepts obtained through the wiretap
    authorization do not capture anything from either Olufeko or Fanikayode. They
    do, however, capture Onaola impersonating Mr. Goldstein attempting to
    coordinate the shipment on a device seized from Onaola upon his arrest. Onaola
    explained that this phone was given to him by Mr. Goldstein.

[9]

As it relates to the movement of the carpets
    from the airport to its final destination (a Public Storage facility), the
    evidence at trial revealed that,

i)

the Hamilton consignee business that Onaola
    spoke of, did not exist;

ii)

at the Public Storage facility, Onaola had
    rented locker A016 under the name Dave Brewer; and

iii)

RCMP officers, with assistance from the Toronto
    Police Service, set up surveillance at both the airport and Public Storage
    facility.

[10]

According to officer testimony, their
    surveillance yielded these results:

i)

At about 1:30 p.m. on June 19, 2014,
    Fanikayodes Chrysler 300 vehicle was observed in the storage facilitys
    parking lot. Of note, Fanikayode and Onaola both testified that Onaola had
    directed Fanikayode to meet him there so that he could give him a carpet.

ii)

Fanikayode drove around the parking lot  presumably looking for
    Onaola  for approximately 10 minutes, before departing.

iii)

During the time Fanikayode is seen driving on
    the storage facilitys premises, phone records show a 10 second call to
    Olufeko.

iv)

After departing the storage facility, Fanikayode
    attended at a Costco across the street.

v)

Shortly after Fanikayodes departure, a cargo
    truck arrived at the airport to retrieve the carpets.

vi)

Police observed Onaola follow this truck in a
    silver Honda sedan. The cargo truck arrived at the storage facility around 3:20
    p.m.

vii)

Fanikayode and Onaola parked near one another in
    the Costco lot, both facing the Public Storage area.

viii)

Onaola walked to the storage facility, allowed the cargo truck
    driver into the secured area, and unloaded the carpets into his rented unit. At
    the same time, Fanikayode was walking in the Costco lot speaking on his phone.
    During this time  2:14 p.m. to 4:35 p.m.  Fanikayodes phone records show
    that he received and/or made 23 calls, including two with Onaola and 7 with
    Olufeko.

[11]

Toronto Police Constable Doug McCutcheon
    testified that, at around 4:33 p.m. on the 19th, he observed a black male in
    his 30s, wearing a teal-coloured t-shirt and sunglasses, in the Costco parking
    lot speaking on his phone and looking into other parked vehicles. Officer
    McCutcheon said that this man initially came from the Costco Gas Bar. He took
    photographs of this person, which were filed at trial. At some point he lost
    sight of him. The officer said that he had him under observation for about 20
    minutes. While the officer had not been able to identify this man as Olufeko
    before, he did so at trial upon being presented with the photographs. When
    Fanikayode was shown the same photographs, he denied that they were of Olufeko.
    Fanikayode further testified that he had not seen Olufeko in the parking lot at
    all that day.

[12]

Surveillance continued on June 20th. According
    to Fanikayode, he was to meet with Onaola to get his carpet. Onaola did not
    show. Onaola testified that they spoke to each other twice that afternoon and
    that Fanikayode was quite angry over the missed meeting. Later, at some point
    between 4:40 p.m. and 4:48 p.m., Olufeko attended at the storage area. He was
    observed by the facilitys manager attempting to open the gate. As Olufeko did
    not have a code he could not gain access on his own, but he followed, on foot,
    another vehicle that could gain access. A short while later, the alarm to
    Onaolas locker was triggered. The facility manager testified that if a unit is
    accessed without the alarm being disabled, it will go off.

[13]

At this time, an RCMP officer was inside another
    locker nearby. She testified that she received a radio transmission at 4:47 p.m.
    alerting her to the fact that a man was approaching. She did not observe that
    man attend inside of, or touch anything in, the locker. At about 4:50 p.m.,
    Olufeko left the storage area and returned to his car, which was parked at the
    Costco lot across the road. Phone records show that the device later seized
    from his vehicle had made (or received) six short calls with Onaola, the last
    one being at 5:24 p.m. and lasting for 15 seconds.

[14]

Onaola, along with Ajiri, arrived at the storage
    facility around 5:10 p.m. Onaola had a keypad code and was able to enter the
    secured area and the unit. Both Onaola and Ajiri went inside, retrieved two
    carpets, and began to load them into their car. At 5:26 p.m.  a mere two
    minutes after the call between Onaola and Olufeko (who had just been where
    Onaola then was)  Onaola returned the carpets he had just retrieved back to
    the locker. Onaola and Ajiri were then arrested.

[15]

At 5:31 p.m., while in his vehicle at the Costco
    parking lot, Olufeko was arrested. In his glove compartment police located and
    seized a cheque, a recent visitor parking permit for Fanikayodes address, the
    vehicle registration, and a Blackberry. In the passenger side door, the police
    found documents connected to the carpet shipment, including a printed email
    from supcan@yahoo.com to solufeko@yahoo.com, an Etihad Airways Bill number
    60710966690, and a handwritten note.

[16]

In his police statement, Olufeko denied that
    these documents were his. He indicated that Onaola asked him to print off the
    email because his printer was not working. When officers searched the address
    on Olufekos drivers licence, they located personal items belonging to both
    Olufeko and Fanikayode.

[17]

As mentioned, Onaola testified on behalf of the
    defence. He acknowledged being a part of the importation scheme, at the behest
    of Mr. Goldstein, but denied that the other accused were. To the extent any of
    Ajiri, Olufeko, and Fanikayode were involved, they were to simply be given a
    carpet as a gift. Ajiri and Fanikayode both testified.  Fanikayodes testimony
    closely aligned with Onaolas. Olufeko did not testify but the Crown introduced
    his police statement for the truth of its contents. In it, Olufeko denied
    knowing anything about the drugs or Mr. Goldstein. When confronted with the
    shipment documents located in his car, he said they were not his. He
    acknowledged that solufeko@yahoo.com was his email address. When asked about
    his attendance at the storage facility, he said that he was just looking for
    Ajiri.

issues

[18]

On this appeal, these issues arise:

i)

Did the trial judge err in allowing the Crown to
    elicit Officer McCutcheons in-court identification of Olufeko, or,
    alternatively, by failing to provide a strong caution about its use?

ii)

Did the trial judge fail to give an adequate
W.(D.)
instruction?

iii)

Did the trial judge improperly criticize the closing address by
    Olufekos counsel?

iv)

In relation to Olufekos sentence, did the trial judge err by
    finding that there were no mitigating factors and, as a consequence, did she treat
    Olufeko and Fanikayode differently? In other words, did she fail to consider
    and apply the parity principle?

v)

Did the trial judge deliver an unbalanced jury charge, which
    favoured Ajiri and deprived Fanikayode of a fair trial?

vi)

Did the trial judge improperly admit opinion evidence on
    counter-surveillance techniques, or err by failing to provide a limiting
    instruction about its use?

vii)

As it relates to Fanikayode, was the verdict unreasonable?

[19]

I will address each in turn.

discussion

Did the trial judge err by
    allowing the Crown to elicit Officer McCutcheons in-court identification of
    Olufeko, or, alternatively, by failing to provide a strong caution about its
    use?

[20]

The concerns that typically arise when you have
    an in-dock identification  which will almost always attract at least a strong
    caution, if not be excluded altogether  do not arise here. To start, the
    photographs that Officer McCutcheon was asked to review were filed as exhibits
    and in the hands of the jury during their deliberations. Jurors were specifically
    told to review the photographs and determine for themselves whether Olufeko is
    the person captured in them. This situation is markedly different than a
    witness simply pointing at an accused in court and saying, it was them, which
    is inherently unreliable especially when the witness and accused are otherwise
    strangers. Here, the jury was told to consider whether the photographs were of
    sufficient clarity and quality to identify the appellant beyond a reasonable
    doubt. This instruction was in accordance with the principles set out in
R.
    v. Nikolovski
, [1996] 3 S.C.R. 1197, and went far beyond what was required
    in the circumstances of this case. It was also to Olufekos advantage. A
Nikolovski
instruction is provided in cases where photographic identification stands
    alone, which was not the case here, but, with counsels approval, was given
    nonetheless.

[21]

Remember that the purpose in cautioning a jury
    in circumstances like these is to prevent wrongful convictions, made necessary
    by the fact that witnesses often get it wrong. Sometimes they misidentify
    people with no malice, genuinely and confidently believing they are correct.
    Sometimes they lie. Regardless of a witnesss motivation, in-dock
    identification, and eyewitness evidence generally, must be treated with skepticism.
    As indicated, no such concerns arise here, as the jury did not have to rely
    solely on what someone else said. Each juror could assess it for themselves,
    and the trial judge directed them to do just that.

[22]

Moreover, Olufekos counsel did not object to
    this line of questioning, and, while that is not always determinative, in this
    case it was clearly a tactical decision made to preserve his clients right to
    pursue a similar line with other witnesses in order to impeach them. What I
    mean is, Olufekos counsel advanced the position that police officer
    identification was not credible and by not objecting to the admission of this
    evidence he was maintaining the ability to attack it as such. This comes into
    sharp focus at the pre-charge conference when Olufekos counsel not only declined
    to seek a limiting instruction but approved of the trial judges decision to
    provide the
Nikolovski
instruction, which removes any possibility that
    the lack of objection was merely an oversight. This was Olufeko getting the
    very instruction he wanted and which, despite the ultimate result, was to his benefit.

[23]

I would reject this ground of appeal.

Did the trial judge fail to give
an
adequate W.(D.) instruction?

[24]

Olufeko contends that the trial judge erred in
    her instruction about exculpatory evidence.

[25]

To focus solely on the text of the
W.(D.)
instruction provided, one could conclude that this ground has some merit, as the
    trial judge does seem to relate it only to the testimony of Onaola, Ajiri and
    Fanikayode, and not Olufekos police statement. While the heading of this
    section in the written jury charge included Olufeko, and while the trial judge
    did say that this instruction applies to all three accused, Olufeko argues
    that the trial judge fell into error nonetheless by framing
W.(D.)
as
    a special rule that applies either when an accused chooses to testify or
    when a witness is called by the defence. In other words, this aspect of the
    trial judges charge likely led the jury to exclude Olufekos statement from
    the
W.(D.)
analysis.

[26]

That said, the trial judge did go on to address
    Olufekos statement, instructing the jury as follows:

You can consider what Mr. Olufeko said [to
    police] about his activities, his involvement, or his reasons for being at
    Costco as that relates to your consideration of Mr. Olufekos innocence or
    guilt. You cannot, however, use Mr. Olufekos evidence to draw conclusions
    about the innocence or guilt of Mr. Ajiri, or Mr. Fanikayode.

[27]

This is somewhat problematic, not only because
    it sets Olufekos statement apart from the testimony of the other accused, but
    in the way it distills the analysis down to a question of guilt versus
    innocence, and not whether the statement, even if disbelieved, could raise a
    reasonable doubt.

[28]

However, despite any concerns, this was, in the
    circumstances, an adequate instruction. I point out that Olufekos counsel
    raised no objection, which, while not in itself determinative, is yet another
    example of a tactical decision. I say that because to draw any more attention
    to his statement, Olufeko would have then undermined the defence he raised at
    trial, which was that he had not taken Ajiri to the Public Storage area, when
    in his statement he said he had.

[29]

However, apart from any tactical decision, remember
    that one of the purposes of a
W.(D.)
instruction is to convey to the
    jury that a reasonable doubt applies even when exculpatory evidence is not
    believed. And here, while not perfectly done, the charge, read as a whole,
    sufficiently explains the burden of proof; who has it; and relates exculpatory
    evidence to the reasonable doubt standard. Consider this passage from the
    charge which, when read together with the just mentioned passages, achieves
    that objective:

Unless you are satisfied that the accused did
    not make the statements that are attributed to himyou must consider those
    remarks that may help an accused along with all of the other evidence. If you
    decide that an accused made a statement that may help him in his defence, or if
    you cannot decide whether he made it, you will consider that statement along with
    the rest of the evidence in deciding whether you have a reasonable doubt about
    the accused guilt.

[30]

For these reasons, I would reject this ground of
    appeal.

Did the trial judge
improperly
criticize the closing address by Olufekos counsel?

[31]

This complaint arises from the trial judges
    comments to the jury about the closing address of Olufekos counsel. Olufeko
    submits that what the trial judge said was unfair, denigrated his case, and
    compromised his right to a fair trial.

[32]

After repeating various aspects of the closing,
    this is what the trial judge said:

Before I turn to the Crowns closing
    submissions, I want to make some observations with respect to this closing.
    When you consider this closing, I make the following observations: I remind you
    that it is for you to decide how Mr. Ajiri got to Public Storage. You have
    heard three versions of this, you heard Peter Ajiri say that he went there with
    Mr. Olufeko. You heard Mr. Onaola say that he brought Mr. Ajiri there, then you
    have Mr. Olufekos statement. I ask that you review that statement very
    carefully. When you go through it, you will see an evolution in Mr. Olufekos
    explanation. Initially, he says he went to Costco on his own. Then he says he
    went to a friends at 11:30 a.m., had breakfast, watched a movie, and then his
    friend asked him to drive him to Lakeshore to meet another friend. He was going
    to buy something. That friend was Peter. Then, at a later part of the
    statement, Mr. Olufeko tells you that he did not meet anyone at Costco. It will
    be for you to decide what you believe and what you take from Mr. Olufekos
    statement. And I remind you, again, that the statement pertains, you can use
    that statement in relation to Mr., your findings on Mr. Olufeko. Insofar as
    counsel raised questions about Mr. Ajiris credibility to provide a full answer
    and defence on Mr. Olufekos behalf, those submissions should be treated with
    great care. Did Mr. Olufeko bring Mr. Ajiri to Costco, and did Mr. Olufeko give
    Mr. Ajiri scissors, and the orange card? These are questions about which you
    make the findings of fact. Insofar as the closing submissions went beyond to
    question the credibility and sought to implicate Mr. Ajiri, I remind you that
    it is only the Crown that is prosecuting the case against each of the accused.
    Any personal opinions about anyones guilt by any of the counsel is to be
    disregarded.

[33]

In this instance, an objection was raised.
    Olufekos trial counsel said this:

In my closing I put Mr. Olufekos best foot
    forward and that did not align with the evidence of Mr. Ajiri. Mr. Ajiri hit
    the stand and implicated Mr. Olufeko, not the reverse. Counsel for Mr. Ajiri
    knowingly and with purpose advanced the narrative against Mr. Olufeko, opening
    up the door to cutthroat defences.

[34]

This objection highlights the dilemma Olufeko
    found himself in, which I addressed earlier in these reasons. Also, as
    mentioned, the position Olufeko was attempting to advance at trial was at odds
    with what he had said in his police statement. The trial judge was aware of
    this and chose to intervene. She was right to do so, not just because of the
    inconsistency and risk that the jury would be misled, but because Onaola  an  unsavoury
    witness  had given evidence that undermined Ajiris testimony, which was
    problematic given the cut-throat defence being advanced and the Crowns
    position, which at that point in the trial, was to suggest that Ajiri should be
    believed. What that means is, without the trial judges intervention, it was
    Ajiris right to a fair trial that was placed at risk. In any case, at the end
    of the day, the trial judge was better positioned than I am now to assess the
    dynamics of the case, what interventions were required, and their timing. Here,
    it was reasonably determined that an instruction was required to avoid
    prejudice to Ajiri.

[35]

Again, Onaola was an unsavoury witness. As such,
    the trial judge committed no error when she urged the jury to treat his
    evidence with caution. This was appropriate in the circumstances. Furthermore,
    instructing the jury to be especially cautious or extremely careful in
    considering defence evidence [does not constitute] an error of law, especially
    where that instruction is accompanied by an instruction that accords with [
W.(D).
]:
R. v. Wristen
(1999)
, 47
    O.R. (3d) 66 (C.A.), at para. 45, leave to appeal refused, [2000] S.C.C.A. No.
    419. When such a caution is provided, the question then becomes whether the
    charge, considered as a whole, unfairly undermine[d] the defence position:
Wristen
,
    at para. 45. This charge did no such thing.

[36]

I would, therefore, reject this ground of appeal.

Olufekos
Sentence
Appeal

[37]

I see no error in either the imposition of a
    16-year sentence or in the analysis that led to it. To start, the sentence is
    in the range of what Olufekos counsel sought, which was 15 to 16 years. 16
    years is otherwise a fit sentence, given the nature of the substance, its
    quantity, and the role Olufeko played in the importation scheme.

[38]

As for immigration consequences, it may well be
    that Olufeko and Fanikayode were treated differently  because each did face
    the prospect of deportation  but in the circumstances of this case it was of
    no consequence. Olufeko received the sentence he sought, and the difference in
    their respective sentences is explained by Olufeko being convicted of
    importation, which is more serious and carries a higher degree of moral culpability
    than possessing the same substance for the purpose of trafficking, which is
    what Fanikayode was found guilty of doing. That being the case, parity as
    between Olufeko and Fanikayode would not have been appropriate.

Did the trial
judge
deliver
    an unbalanced jury charge, which favoured Ajiri and deprived Fanikayode of a
    fair trial?

[39]

A jury charge does not need to be perfect, but
    it does need to be fair:
R. v. Baltovich
(2004), 73 O.R. (3d) 481
    (C.A.), at paras. 114-18. As the charge was fair, this ground of appeal must
    fail.

[40]

For Fanikayode, the problem lies in the trial
    judge telling the jury to be very cautious about Onaolas testimony, in
    particular his description of the nature and extent of his engagement with the
    three accused. The trial judge went on to tell the jury that they should
    approach [their] findings of fact with particular care and caution, because it
    is possible that Mr. Onaola may have been more concerned to distance Mr.
    Olufeko, and to implicate Mr. Ajiri.

[41]

Earlier in these reasons, when discussing
    Olufekos contention that Ajiris interests were protected (at his expense), I
    alluded to the Crown shifting its position in respect of Ajiri as the trial
    came to a close. What I failed to mention, but is critical when assessing this
    ground of appeal, is the Crown ultimately withdrew the conspiracy count as
    against Ajiri. This happened before the case was placed in the jurys hands,
    and each juror would have been aware of this development. Given the change in
    position  which had to have emanated from the Crowns acceptance of much of
    Ajiris testimony  it was incumbent on the trial judge to weigh in so as to protect
    Ajiris fair trial interests.

[42]

Doing this did not, however, create an
    unfairness for Fanikayode. Consider what the trial judge said about the Crowns
    change in position and submissions concerning Ajiri:

[The Crown] has told you that he is not sure
    of Mr. Ajiris level of involvement. He has left the questions concerning Mr.
    Ajiris knowledge and level of control up to you. It is significant that he has
    asked you to rely on Mr. Ajiris evidence to make findings against Mr. Olufeko
    and Mr. Fanikayode. If the Crown is asking you to find Mr. Ajiri credible on a
    number of aspects of this case, I ask you, does it make sense to you that he
    would, Mr. Ajiri would not be credible on his exchange with the police.
    Did he know more than he let on, as [the?] Crown suggested, or did he not know?
    You have to consider those questions very carefully, and they are your findings
    to make.

[43]

The trial judge had to say something about this given
    the Crowns changed position. There was no basis to say something similar about
    Fanikayode, which does not give rise to an unfairness but is, rather, a reality
    of a case where the evidence against each accused, and their respective
    positions, was different. The trial judge was best positioned to gauge what was
    required and to strike the right balance. I see no reason for this court to
    interfere and would, therefore, reject this ground of appeal.

Did the trial judge err by improperly
    admitting opinion evidence on counter-surveillance techniques or by failing to
    provide a limiting instruction about its use?

[44]

I begin this issue by saying that I do not
    necessarily accept the characterization of the evidence as opinion evidence. It
    appears to me to be narrative evidence of the officers observations. However,
    assuming that it is opinion evidence, I point out, again, that there was no
    objection from trial counsel with respect to the officer being asked about, and
    giving, this evidence. This is yet another example of an appellant raising
    issues that were not raised by trial counsel. While it is ultimately the trial judges
    responsibility to ensure only admissible evidence is presented to the jury and
    that the proceeding is fair, at the same time, trial judges inevitably, and
    quite properly, look to trial counsel for assistance and reasonably expect to
    receive it. At one point, appellant counsel suggested that because this was a
    lengthy, complex trial, with several accused and counsel, it could be that
    counsel just got tired as it neared its conclusion, as a way to explain the
    lack of diligence by trial counsel as a mere oversight. I do not accept that.
    If anything, the nature of the proceeding would have elevated counsels level
    of awareness and the need to preserve the record so that contentious issues
    could be properly addressed on appeal.

[45]

In any case, I do not believe the trial judge
    fell into error. I start by pointing out that police opinion about
    counter-surveillance techniques was first raised by Fanikayode. Consider this
    exchange between Fanikayodes counsel and Officer Willschick:

Q. Okay, so, when you guys went out, your team
    went out, would it be fair to say that your mandate was to look for any
    suspicious activity with regard to this controlled delivery?

A. Yes.

Q. Okay. And you said that you were nominated
    the scribe for the surveillance report on the 19
th
?

A. Correct.

Q. Thats probably because of your handwriting
    because I have no trouble reading it. And so, your job essentially was to take
    down anything that wouldve been suspicious that was reported on the radio, is
    that correct?

A. Yeah, when another member would make an
    observation, I was to write it down.

Q. [If] someone were to say over the radio
    that they saw something suspicious, thats something that you would write down,
    correct?

A. I would think so, yes.

Q. You think so. So, if someone said, for
    example, they saw one of the suspects doing counter-surveillance, looking for
    police, you wouldve written that down, correct?

A. I believe I would have.

Q. And that would be important because thats
    what you guys were looking for which is suspicious activity that day?

A. Correct.

Q. Okay. And you had a chance to review your
    surveillance report from the 19
th
?

A. Yeah, I have it right here too.

[46]

The reason Fanikayode took the approach he did, is
    clear. He wanted to blunt the apparent connection between him and the shipment,
    and he could only do that by pursuing this line of questioning to, hopefully
    (from his perspective), show that he was not conducting counter-surveillance.
    Therefore, if Officer Willschick was able to give this testimony  which is
    what Fanikayodes counsel seems to have thought  then why couldnt Officer
    McCutcheon? Maybe both should have been permitted to do so. Maybe neither. In
    any case, the trial judge was not asked by counsel to weigh in and provide
    guidance, and she otherwise saw no need to intervene on her own initiative.

[47]

In the circumstances of this case, it was not an
    error to permit the admission of the counter-surveillance conclusion. Nor was a
    limiting instruction required, given its lack of importance and the trial
    judges decision to not repeat, or otherwise highlight, the police evidence in
    this respect. In fact, given how Fanikayode advanced his defence, if the trial
    judge had referred to this evidence in her charge, he could have claimed that
    she unnecessarily drew attention to it.

[48]

I would reject this ground of appeal.

As it relates to Fanikayode, was the
    verdict unreasonable?

[49]

As there was ample evidence to support each verdict,
    this ground of appeal must fail.

conclusion

[50]

For these reasons, I would dismiss the appeals
    against conviction.

[51]

I would grant Olufeko leave to appeal his sentence,
    but would dismiss the appeal.

Released: April 19, 2022 K.M.v.R.

J. George J.A.

I agree. K. van Rensburg J.A.

I agree. I.V.B. Nordheimer J.A.

[1]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Panchal, 2022 ONCA 309

DATE: 20220419

DOCKET: C67217

Tulloch, van Rensburg, and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Siddharth Panchal

Appellant

Myles Anevich, for the appellant

Andrew Cappell, for the respondent

Heard: September 7, 2021 by video conference

On appeal from the conviction entered on
    April 8, 2019 and the sentence imposed on April 8, 2019 by Justice Frederic M.
    Campling of the Ontario Court of Justice.

Tulloch J.A.:

[1]

The appellant was convicted of fraud over
    $5,000. At trial, the only witnesses were the victim and a purported unwitting
    accomplice; the appellant elected not to testify. The appellant appeals against
    his conviction, arguing that the trial judges reasons do not permit meaningful
    appellate review and that the verdict is unreasonable. In his notice of appeal,
    the appellant sought leave to appeal against his sentence; however, neither the
    appellants factum nor his oral submissions pursued this relief. Accordingly, I
    have treated the application for leave to appeal the sentence as abandoned.

[2]

At the conclusion of the hearing, we dismissed
    this appeal and indicated that reasons would follow. These are those reasons.

I.        BACKGROUND FACTS

[3]

On May 26, 2015, a man identifying himself as
    Thomas called the victim, Geeta Purohit, claiming to be a government official
    investigating her immigration paperwork. Ms. Purohit had immigrated to Canada
    from India in 2005 and became a Canadian citizen around 2010.

[4]

Thomas informed Ms. Purohit that unless she
    paid a fee, he would come to [her] door and that if her paperwork was not in
    order, she would be deported. Thomas instructed Ms. Purohit to make two bank
    transfers totalling $15,000; he would retain a $2,000 processing fee to remedy
    the issue with the paperwork, and the remainder would be returned to her via a
    government cheque in the mail.

[5]

Thomas stayed on the phone with Ms. Purohit
    while she attended at her local RBC branch and withdrew $15,000. Thomas then
    directed her to attend a Scotiabank and deposit $3,000 into an account
    belonging to Tarun Deep Singh Bal. Thomas then instructed her to attend a
    CIBC branch and deposit $12,000 into an account belonging to Kalpesh Solanki.
    Later that day, Thomas called Ms. Purohit again and instructed her to go
    to a UPS store and email the deposit receipts to a specified email address, and
    then to destroy the receipts.

[6]

Throughout that day and in the following days,
    Thomas warned Ms. Purohit against telling anyone what she had done and
    against going to the police. After several days had passed and Ms. Purohit
    still had not received the government cheque promised to her by Thomas, she
    confided in a friend, who encouraged her to report the incident to the police. Ms.
    Purohit did so and was able to recover the $3,000 Scotiabank transfer.

II.       DECISION BELOW

[7]

At the trial, the only witnesses were Ms.
    Purohit and Mr. Kalpesh Solanki, the owner of the account in which Ms. Purohit
    had deposited $12,000. It was not contested that Ms. Purohit was defrauded. The
    central issue to be determined was whether the appellant had participated in
    the fraud scheme.

[8]

The only evidence linking the appellant to the
    alleged fraud was Mr. Solankis testimony. Mr. Solankis evidence was that
    he and the appellant were friends. The appellant contacted him and asked to use
    his bank account to make a transfer. The appellant had stated that his account
    was seized by the police due to an outstanding criminal charge, and that he
    needed Mr. Solankis assistance to receive money from someone in India for his
    legal fees. Mr. Solanki provided the appellant with his CIBC account
    information. Mr. Solanki testified that he agreed to do so because he and the
    appellant are both from India.

[9]

Mr. Solanki further testified that on May 26,
    2015, the appellant called him to confirm that the money had been deposited.
    The appellant asked Mr. Solanki to withdraw the $12,000, which Mr. Solanki did
    and gave to the appellant later that afternoon. Mr. Solanki did not receive
    anything in return.

[10]

No evidence was tendered as to how or from whom
    the $3,000 was recovered. There was also no evidence as to the ownership of the
    email address to which Thomas asked Ms. Purohit to send the deposit receipts,
    and no evidence as to the ownership of the phone number from which Thomas
    called. The trial judge did not hear submissions from the Crown on these
    issues.

[11]

The trial judge found Mr. Solanki to be a
    credible and reliable witness. He found that Mr. Solanki testified calmly and
    in a straightforward way, and that he was a very believable witness. The
    trial judge treated Mr. Solankis evidence with special care, recognizing
    that this evidence presumably had led to the withdrawal of charges against Mr.
    Solanki. Having regard to all the evidence, the trial judge convicted the
    appellant.

[12]

The appellant was sentenced to two years
    incarceration less pre-trial custody credit at a 1.5 to 1 ratio. The trial
    judge also made a restitution order in the amount of $12,000 in favour of Ms.
    Purohit.

III.      ISSUES

[13]

The appellant raises two issues on his
    conviction appeal:

1.

Did the trial judge err by failing to provide
    reasons that were sufficient to allow for meaningful appellate review?

2.

Did the trial judge err by failing to turn his
    mind to other reasonable inferences aside from guilt and thereby rendering an
    unreasonable verdict?

IV.     ANALYSIS

(a)

Sufficiency of trial judges reasons

[14]

The appellants primary ground of appeal is the
    insufficiency of the trial judges reasons, which the appellant argues do not
    permit for meaningful appellate review. He contends that the trial judges
    reasons failed to sufficiently articulate how credibility concerns of the
    Crowns main witness, Mr. Solanki, were resolved, and why alternative
    explanations inconsistent with guilt were rejected, which amounts to a
    reversible error.

[15]

I disagree. A trial judges reasons must be read
    as a whole. Do the reasons achieve their intended function, which is to explain
    the result of the case? The reasons must justify and explain the results so
    that the losing partyin this case, the appellantand just as importantly,
    interested members of the public, can satisfy themselves that justice has been
    done, or not, as the case may be:
R.

v. Sheppard
, 2002 SCC 26, [2002] 1
    S.C.R. 869, at para. 24.

[16]

Viewed from a contextual perspective, reasons
    must achieve the function of preserving and enhancing meaningful appellate
    review of the correctness of the decision which factors in both errors of law
    as well as palpable and overriding errors of fact. As the Supreme Court in
R.
    v. Sheppard
noted, at para. 25:

If deficiencies in the reasons do not, in a
    particular case, foreclose meaningful appellate review, but allow for its full
    exercise, the deficiency will not justify intervention under s. 686 of the
    Criminal Code. That provision limits the power of the appellate court to
    intervene to situations where it is of the opinion that

(i) the verdict is unreasonable,

(ii) the judgment is vitiated by an error of
    law and it cannot be said that no substantial wrong or miscarriage of justice
    has occurred, or

(iii) on any ground where there has been a
    miscarriage of justice.

(b)

Assessment of Mr. Solankis credibility

[17]

The appellant submits that because of the
    brevity of the trial judges reasons, they failed to sufficiently articulate
    how credibility concerns were resolved and why alternative explanations
    inconsistent with guilt were rejected.

[18]

I disagree. The trial judges reasons adequately
    addressed the live issues at trial. The trial judge recognized that Mr.
    Solankis evidence was central to the Crowns case and that his credibility was
    the main issue on which the evidence depended. The trial judge explained why he
    found Mr. Solanki to be a credible witness. Moreover, he cautioned himself with
    respect to his assessment of Mr. Solankis evidence, noting that Mr.
    Solanki may very well have had a motive to minimize his own involvement in the
    fraudulent scheme and thus cast the blame on others, such as the appellant.
    After all, it was Mr. Solankis bank account in which the fraudulent deposit
    was made, and he was the first person who was suspected by the police to have
    participated in the commission of the offence.

[19]

The appellant further submits that there was no
    analysis of how the trial judge reconciled discrepancies in Mr. Solankis
    evidence or how he overcame evidence that on its face incriminated Mr. Solanki.
    In addition, the appellant submits that the trial judge over-relied on
    demeanour evidence in his credibility assessment and as well, failed to engage
    in a meaningful
R. v. W.(D.)
, [1991] 1 S.C.R. 742, analysis. I
    disagree.

[20]

The trial judge had the firsthand opportunity to
    hear all the evidence and observe all the witnesses.

[21]

The appellant chose not to testify, as was his
    right. While this was not a factor that could be considered by the trial judge,
    it is a factor that can be considered on appeal. The trial judge ultimately
    found Mr. Solankis evidence to be credible and articulated why he did. It is
    not for this court to second-guess his credibility findings, unless it can be
    shown that he committed an error of law or a palpable and overriding error of
    fact. I am not satisfied that any such error was committed here. I agree with
    the submissions of the respondent that, beyond the special care and scrutiny
    that the trial judge was required to give to Mr. Solankis evidence, the
    trial judge was not required to explicitly resolve or explain any other issue
    pertaining to his credibility finding.

[22]

In
R. v. G.F
., 2021 SCC 20, 459 D.L.R.
    (4th) 375, at paras. 81-82, the Supreme Court recently reiterated the
    long-standing principle that appellate courts ought to defer to trial judges on
    their credibility findings:

[81]  a trial judges findings of credibility
    deserve particular deference. While the law requires some articulation of the
    reasons for those findings, it also recognizes that in our system of justice
    the trial judge is the fact finder and has the benefit of the intangible impact
    of conducting the trial. Sometimes, credibility findings are made simpler by,
    for example, objective, independent evidence.Mindful of the presumption of
    innocence and the Crowns burden to prove guilt beyond a reasonable doubt, a
    trial judge strives to explain why a complainant is found to be credible, or
    why the accused is found not to be credible, or why the evidence does not raise
    a reasonable doubt.

[82]   Credibility findings must also be
    assessed in light of the presumption of the correct application of the law,
    particularly regarding the relationship between reliability and credibility.
    The jurisprudence often stresses the distinction between reliability and
    credibility, equating reliability with the witness ability to observe, recall,
    and recount events accurately, and referring to credibility as the witness
    sincerity or honesty. However, under a functional and contextual reading of
    trial reasons, appellate courts should consider not whether the trial judge
    specifically used the words credibility and reliability but whether the
    trial judge turned their mind to the relevant factors that go to the
    believability of the evidence in the factual context of the case, including
    truthfulness and accuracy concerns.[Citations omitted.]

(c)

W.(D.)
analysis

[23]

I also would not give effect to the appellants
    complaint about the trial judges
W.(D.)
analysis. I do not accept
    that the trial judge arrived at his decision by choosing between two different
    versions of evidence. As indicated by the respondent in its submissions, the
    case before the trial judge was a very straightforward and uncomplicated case.
    Given defence counsels concession at trial that the complainant had been the
    victim of a fraud, the trial judge effectively had only one issue to determine,
    which was whether he believed the evidence of the sole other witness, Mr.
    Solanki, that he received the $12,000 that the complainant deposited in his
    bank account at the behest and for the benefit of the appellant. The trial
    judge found Mr. Solanki to be a credible witness and accepted his evidence
    accordingly, he found the appellant guilty. As has been held by this court and
    the Supreme Court of Canada, [t]he paramount question in a criminal case is
    whether, on the whole of the evidence, the trier of fact is left with a reasonable
    doubt about the guilt of the accused. [Citation omitted.] The order in which a
    trial judge makes credibility findings of witnesses is inconsequential as long
    as the principle of reasonable doubt remains the central consideration:
R. v. Vuradin
,
    2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21.

(d)

Demeanor evidence

[24]

I also do not accept that the trial judge
    over-relied on the demeanour of Mr. Solanki in assessing his credibility.
    As this court has recently stated, [t]he starting point is that although its
    admission may be somewhat rare, there is no bar to the admission of demeanour
    evidence:
R. v. Staples
, 2022 ONCA 266, at para. 38. It is settled
    law that demeanour evidence is a factor that a trial judge is entitled to
    consider, provided it is not the exclusive determinant of his or her
    credibility assessment. As stated by this court in
R. v. A.A.
, 2015
    ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32:

[
131
]   It
    is beyond dispute that demeanour is a factor the trier of fact is entitled to
    consider in assessing the credibility of witnesses and the reliability of their
    testimony.

[
132
]   On
    the other hand, it is equally well settled that a witnesss demeanour cannot
    become the exclusive determinant of his or her credibility or of the
    reliability of his or her evidence. [Citations omitted.]

[25]

While Mr. Solankis demeanour was one factor
    that the trial judge considered in his credibility assessment, it was not the
    only factor, nor was it the overriding factor. Mr. Solankis evidence was not
    contradicted by any other evidence. As pointed out by the respondent, his
    evidence was unshaken during cross-examination. As well, there was no internal
    inconsistency in the way that he testified or in the substance of his evidence.

[26]

Furthermore, the trial judge found that Mr.
    Solanki gave his evidence in a straightforward and consistent manner, which is
    a factor that the trial judge was entitled to consider in his credibility
    assessment.

(e)

Reference to Mr. Solankis police statement

[27]

The appellant also takes issue with the
    following paragraphs in the trial judges reasons, suggesting that the trial
    judge placed undue weight on the fact that parts of Mr. Solankis testimony
    were consistent with his police statement.

[28]

In summarizing Mr. Solankis evidence for the
    appellant, the trial judge stated:

His evidence is that, you asked him to allow
    you to use his Bank of Commerce account as a conduit, to allow money to be
    deposited there that he would withdraw and turn over to you.

When he gave that version of what transpired
    to the Hamilton Police and provided them with a picture of you that was
    available online, it led to your arrest and, presumably, to the withdrawal of
    charges against Mr. Solanki.

[29]

The appellant argues that these paragraphs in
    the trial judges reasons are evidence that the trial judge violated the rule
    against reliance on prior consistent statements to bolster the witnesss
    credibility.

[30]

While it is true that the trial judge referred
    to Mr. Solankis statement to the police, these paragraphs must be read within
    the overall context of the reasons and the live issues at trial, which include
    the submissions of counsel. When read as a whole, I am satisfied that the judge
    did not reference Mr. Solankis statement to suggest that Mr. Solanki was more
    believable because he gave an earlier version of his story to the police which
    was now consistent with his evidence at trial. Instead, the trial judge
    referenced Mr. Solankis statement to explain how the narrative of the case
    unfolded and how the charges came to be laid against the appellant and to be
    withdrawn against Mr. Solanki. Again, I do not place any weight on this
    argument.

(f)

Consideration of reasonable inferences other
    than guilt

[31]

The appellant submits that the trial judge
    failed to turn his mind to inferences inconsistent with guilt and therefore
    contributed to an unreasonable verdict.

[32]

The applicable legal principle is set out by the
    Supreme Court of Canada, in the case of
R. v. Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000, at para. 55, where the court stated:

A verdict is reasonable if it is one that a
    properly instructed jury acting judicially could reasonably have rendered.
    Applying this standard requires the appellate court to re-examine and to some
    extent reweigh and consider the effect of the evidence. This limited weighing
    of the evidence on appeal must be done in light of the standard of proof in a
    criminal case. Where the Crown's case depends on circumstantial evidence, the
    question becomes whether the trier of fact, acting judicially, could reasonably
    be satisfied that the accused's guilt was the only reasonable conclusion available
    on the totality of the evidence. [Citations omitted.]

[33]

The appellant argues that the trial judge did
    not consider reasonable inferences other than guilt that arose from the
    evidence or lack thereof. I disagree.

[34]

While it is settled law that cases based
    substantially on circumstantial evidence can only be proven if there are no
    reasonable inferences other than guilt, this was not such a case. This case was
    based neither wholly nor substantially upon circumstantial evidence. This was a
    case in which the direct
viva voce
evidence of the appellants friend
    implicated him as the perpetrator of the fraud. The appellant did not testify.
    The case depended on the credibility and reliability of the evidence of Mr.
    Solanki. The overriding issue in the case was the credibility of Mr. Solanki. I
    agree with the Crowns submission that, having accepted Mr. Solankis
    evidence, the only reasonable inference open to the trial judge was that the
    appellant was guilty of fraud. The trial judge was entitled to find
    Mr. Solankis evidence both credible and reliable, and having done so, the
    inescapable conclusion was that the appellant was guilty of the offence.

[35]

Furthermore, as indicated above, an appellate
    courts role in reviewing a trial decision involving circumstantial evidence is
    circumscribed and limited to the principles outlined in
R. v. Villaroman
.
    In the case of
R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at
    paras. 39 and 71, this court reiterated this principle:

[39] When a verdict that rests wholly or
    substantially on circumstantial evidence is challenged as unreasonable, the
    question appellate courts must ask is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the guilt of the accused was the
    only reasonable conclusion available on the evidence taken as a whole:
Villaroman
,
    at para. 55. Fundamentally, it is for the trier of fact to determine whether
    any proposed alternative way of looking at the case as a whole is reasonable
    enough to raise a doubt about the guilt of the accused:
Villaroman
, at
    para. 56.

[71] I approach our task in connection with
    this ground of appeal mindful of basic principles. A verdict is reasonable if
    it is one that a properly instructed trier of fact acting judicially could
    reasonably have rendered. In our application of this standard, we are to
    re-examine and, to some extent, within the limits of appellate disadvantage, to
    reweigh and consider the cumulative effect of the evidence adduced at trial. In
    this case, where the evidence on the controverted issue of knowledge is
    entirely circumstantial, our task is to determine whether a trier of fact,
    acting judicially, could reasonably have been satisfied that the appellant's
    guilt was the only reasonable inference available on the evidence taken as a
    whole. And we must also have in mind that it remains fundamentally for the
    trier of fact to decide whether any proposed alternative way of looking at the
    case is reasonable enough to raise a doubt.

[36]

In all the circumstances, I am not satisfied
    that the appellant has established errors of law or palpable and overriding
    errors of fact in the trial judges decision that warrant appellate
    intervention. I am also satisfied that the trial judges reasons are sufficient
    and adequately serve the important functions for which they are intended. They
    attend to the dignity interest of the appellant by conveying to him why the
    decision was made. They provide for public accountability as they are
    discernible when placed in the context of the evidence, the submissions of
    counsel, and the narrative of the evidence and how the case unfolded at trial.
    Read as a whole, the reasons permit effective appellate review. As well, I am
    satisfied that when the reasons are read as a whole, within the context of the
    evidence and live issues at trial, the verdict is a reasonable one.

V.      DISPOSITION

[37]

The appeal is dismissed.

Released: April 19, 2022 M.T.

M.
    Tulloch J.A.

I
    agree. K. van Rensburg J.A.

I
    agree. I.V.B. Nordheimer J.A.