COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Manasseri, 2015 ONCA 3

DATE: 20150106

DOCKET: M44517 (C55794)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Charlie Manasseri

Respondent

Shawn Porter, for the applicant

Philip Campbell, for the respondent

Heard: December 19, 2014

Application to revoke the order of judicial interim release
    made on October 24, 2014 by Epstein J.A. and for an order to cancel the recognizance
    of bail entered pursuant to the order of Strathy J.A., dated April 15, 2014.

Watt J.A.:

[1]

A chance meeting at a set of gas pumps provides the genesis for this
    application to revoke an order for release pending appeal and to return a
    convicted murderer to prison to await the determination of his appeal to this
    court.

THE BACKGROUND FACTS

[2]

A brief reference to prior proceedings and to the events that occurred
    at trial is sufficient background to an understanding and determination of this
    application.

The Trial Proceedings

[3]

Charlie Manasseri and George Kenny assaulted Brian Fudge at an Ottawa
    bar early on New Years Day, 2005. Fudge never regained consciousness. He died
    on January 2, 2005.

[4]

Manasseri and Kenny were jointly tried for their involvement in Brian
    Fudges death. Manasseri was charged with and convicted of second degree
    murder. Kenny was charged with manslaughter and convicted of assault causing
    bodily harm.

The Causation Issue at Trial

[5]

The assaults on Fudge, first by Manasseri then by Kenny, occurred
    separately. Whose blows caused Brian Fudge to die was an issue at trial. The
    verdict of the jury indicates that its members were satisfied beyond a
    reasonable doubt that the blows inflicted by Manasseri caused Brian Fudges
    death, not the later beating administered by Kenny.

[6]

The principal witness on causation at trial was Dr. Yasmine Ayroud, the
    forensic pathologist who did the post-mortem examination on Brian Fudges body.
    Dr. Ayroud concluded that Brian Fudge died of a diffuse axonal injury caused by
    blows inflicted by Manasseri. She rejected, or at least minimized, the
    possibility that death was caused by alcohol concussion syndrome that would
    have pointed to Kenny as the person who had caused death.

The Appellate Proceedings

[7]

Manasseri and Kenny have appealed their convictions. Manasseri will seek
    to introduce fresh evidence on the issue of causation on the hearing of his
    appeal. The substance of the evidence consists of the opinions of two forensic
    pathologists, Dr. David Ramsay and Dr. Christopher Milroy. Each asserts that
    the death of Brian Fudge was due to alcohol concussion syndrome and would not
    have occurred but for the later assault by Kenny.

[8]

Neither Dr. Ramsay nor Dr. Milroy has been cross-examined on their affidavits.
    Neither appeal has been perfected.

The Release Order

[9]

On October 29, 2013 Charlie Manasseri was ordered released from custody
    pending the determination of his appeal.  The order required Manasseri to enter
    into a recognizance in the amount of $125,000, with two named sureties, but
    without deposit. The sureties are Manasseris brother and his sister-in-law.

[10]

The
    recognizance on which Manasseri was released included several conditions, among
    them this:

REFRAIN from any direct or indirect communication with the
    owners and employees of Le Skratch bar, any witnesses in the matter, and the
    family of Brian Fudge.

[11]

The
    original release order of October 29, 2013 has been extended twice by judges of
    this court because counsel for Manasseri has not perfected his appeal by the
    dates specified in the order. On each occasion, Manasseri has entered into a
    new recognizance. On each occasion, that recognizance has included the
    non-communication term excerpted in the immediately preceding paragraph.

[12]

A
    recognizance containing the non-communication term was in force on October 27,
    2014.

The Gas Station Incident

[13]

Around
    9:30 p.m. on October 27, 2014, Dr. Ayroud was at a gas station fueling her
    vehicle. Charlie Manasseri approached her from the other side of the pump
    island and began to speak to her.

[14]

Manasseri
    identified himself to Dr. Ayroud and pointed to the bar across the road as the
    place where the altercation had occurred. He made several references to the
    trial and its consequences including how long he had spent in custody before
    being released, the difficulties he had in trying to find a job and various health
    problems from which he suffered. Manasseri complained about the bias of the
    police, the frailties of the evidence against him and the competence of his
    trial counsel.

[15]

Manasseri
    explained to Dr. Ayroud that he needed to find someone to contradict the evidence
    that she had given at trial. He walked over to a panel on the wall and hit it
    hard several times with both fists, then said something to the effect that had
    he done that to Brian Fudge, Mr. Fudge would have had sustained more injuries.
    The gas station attendant came outside to see whether everybody was okay.
    Both Dr. Ayroud and Manasseri replied yes.

The Request for Silence

[16]

As
    Manasseri and Dr. Ayroud parted company, Manasseri said Thank you. I hope, I
    hope you can keep this private. Because Im not allowed to talk to witnesses and
    I, I just realized that you are a witness. Have a good night. Drive carefully.

The Police Investigation

[17]

About
    a week later, on November 4, 2014, Dr. Ayroud reported the incident to the
    Crown Attorneys Office and the Ottawa Police Service. She turned over the
    notes she had made about the incident to the police the following day.
    Subsequently, police interviewed the attendant who had been on duty at the gas
    bar when the incident occurred, reviewed a video he had taken on his cellphone
    and watched what appeared on the security video at the gas station.

The Charges

[18]

On
    November 14, 2014 police charged Manasseri with breach of recognizance under s.
    145(3) of the
Criminal Code
. Manasseri did not request a bail hearing
    on the charge and remains in custody as a result.

THE MOTION

[19]

The Crown seeks an order revoking the
    order directing the release of Manasseri pending the determination of his
    appeal to this court and cancelling the recognizance into which he entered
    under that order.

[20]

For his part, Manasseri acknowledges
    the authority of a single judge of appeal to make the orders sought and
    recognizes the likelihood that they will be made. What Manasseri seeks is a new
    release order permitting him to be out of custody pending the determination of
    his appeal. He proposes a recognizance in a more substantial amount with an
    additional surety and subject to more stringent conditions.

The
    Positions of the Parties

[21]

The
    parties begin on common ground. Each acknowledges the authority of a chambers
    judge to make an order under s. 679(6) of the
Criminal Code
revoking
    an order releasing an appellant pending determination of his or her appeal to
    the court of appeal and cancelling the form of release that gives effect to
    that order.

[22]

For
    the Crown, Mr. Porter accepts the onus of establishing a reasonably grounded
    belief that Charlie Manasseri contravened his recognizance or committed an
    indictable offence after his release from custody. He submits that he has met his
    onus, but that Manasseri has failed to show cause why his detention in custody
    is not justified within s. 515(10) of the
Criminal Code
.

[23]

Mr.
    Porter says that the materials filed on the application demonstrate a violation
    of the non-communication term of the release order and recognizance. The
    exchange between Manasseri and Dr. Ayroud demonstrates Manasseris knowledge of
    her role as a witness at his trial, the critical importance of her evidence to
    his conviction and the need for contrary evidence if his appeal is to succeed.
    Manasseris parting remarks demonstrate his appreciation of the unlawful nature
    of his conduct and an attempt to sequester it from investigative view.

[24]

Mr.
    Porter contends that Manasseris case for a fresh release order collapses under
    its own weight. This was a serious breach. It occurred while Manasseri was
    bound by a recognizance in a substantial amount. His brother and sister-in-law
    were his sureties. He attempted to cover up the breach, at the same time
    acknowledging the impropriety of his conduct.

[25]

For
    Manasseri, Mr. Campbell recognizes the virtual inevitability of a revocation of
    the release order and cancellation of the recognizance. He focusses his
    submissions on the case for a new release order and fresh recognizance.

[26]

Mr.
    Campbell says that the appeal against conviction has significant merit: the
    fresh evidence demonstrates that Manasseris assault on Fudge was not a
    significant contributing cause of Fudges death. It would be contrary to the
    interests of justice to require Manasseri to remain in custody for several
    months as the fresh evidence record is completed while Kenny, the gratuitous
    beneficiary of an erroneous verdict, remains out of custody.

[27]

Mr.
    Campbell contends that one isolated incident should not result in Manasseris
    return to prison. He was out of custody for several years prior to trial and
    for a year after conviction without any scent of a breach. He proposes an
    additional surety, Manasseris partner, who well understands the obligations of
    a surety and, by vocation, is an experienced supervisor. He has a valid defence
    to the charge of failure to comply with the recognizance and will advance it
    fully at trial. Additional reporting terms will make the point that compliance
    is not optional.

The Governing Principles

[28]

Brief
    reference to the authority to make the orders Crown counsel seeks will furnish
    the foundation necessary for the discussion that follows.

The Statutory Authority

[29]

Section
    679(6) of the
Criminal Code
makes the provisions of ss. 525(5), (6)
    and (7) applicable to persons who have been released from custody pending
    determination of their appeal to the court of appeal: with such modifications
    as the circumstances require.

[30]

Among
    the incorporated provisions, s. 525(5) permits a judge (of the superior court
    of criminal jurisdiction
[1]
)
    to issue a warrant for the arrest of an accused who has been released from
    custody if the judge is satisfied that there are reasonable grounds to believe
    that since release an accused:

i.

has violated or is about to violate his or her form of release; or

ii.

has committed an indictable offence
[2]
.

Section 525(6) authorizes a peace officer to arrest an
    accused without warrant where the officer has the same reasonably grounded
    belief that would permit issuance of a warrant of arrest under s. 525(5).

[31]

The
    final incorporated provision, s. 525(7), authorizes release of an accused
    arrested with or without warrant under either s. 525(5) or s. 525(6), provided
    the accused shows cause why his or her detention in custody is not justified on
    any ground enumerated in s. 515(10). Section 525(7) lacks the detail contained
    in ss. 524(4) and 524(8), which require a judicial finding of previous or
    anticipated breach or commission of an indictable offence since release as a
    condition precedent to cancellation of the form of release and a hearing at
    which the accused is entitled to show cause for release.

[32]

The
    inscrutable such modifications as the circumstances require, a close relative
    of
mutatis mutandis
, has a chequered past with judges of this court.
    But after a few skirmishes along the way, the parties agree that, at least
    where an appellant is in custody on a charge of failure to comply with a
    recognizance entered into pursuant to an order for release pending appeal, a
    chambers judge has authority to:

i.

revoke the release order;

ii.

cancel the recognizance; and

iii.

where the appellant shows cause that his or her detention is not
    necessary within s. 515(10) of the
Criminal Code
, order the appellants
    release from custody on a fresh recognizance.

See,
R. v. Dallaire
(2001), 141 O.A.C. 65, 40
    C.R. (5th) 385 (C.A.  Chr.s), at paras. 11-14. See also, Trotter,
The Law
    of Bail in Canada
(3rd ed.), s. 11.6, at p. 11-19.

The Principles Applied

[33]

For
    the reasons that follow, I am satisfied that the current order in accordance
    with which Manasseri was released from custody pending the hearing of his
    appeal should be revoked and the recognizance issued to give effect to that
    order cancelled. Further, at least until such time as counsel for Manasseri can
    provide a schedule for the expeditious completion of the fresh evidence
    materials and perfection of the appeal, Manasseri will remain in custody.

[34]

First,
    I am satisfied, as the parties agree, that I have the authority to revoke the
    release order and cancel the recognizance.

[35]

Charlie
    Manasseri is already in custody, as a result of his arrest on a charge of failure
    to comply with the recognizance entered into under a release order made by a
    judge of this court. He was not arrested, so far as I can determine, on the
    basis of any authority incorporated by reference in s. 679(6). He has received
    timely and detailed notice of the basis of this application.

[36]

Apart
    altogether from the fact of the charge of failure to comply, the materials
    filed in support of the application satisfy me that there are reasonable
    grounds to believe that since his release pending the determination of his
    appeal to this court, Charlie Manasseri has contravened the recognizance on
    which he was released and committed an indictable offence.

[37]

Manasseri
    approached Dr. Ayroud. He recognized her, not only as a witness from his trial,
    but as a witness whose opinion Manasseri needs to contradict on appeal if his
    appeal is to succeed. It was her opinion about cause of death that tended to
    assign responsibility for the killing to Manasseri. That Manasseri knew that
    speaking to Dr. Ayroud was a breach of his release terms seems clear from his
    parting remarks about keeping the conversation secret.

[38]

Mr.
    Campbell did not argue strenuously that a case for revocation and cancellation
    had not been established. The order releasing Manasseri pending the
    determination of his appeal is revoked and the recognizance entered into to
    give effect to that order is cancelled.

[39]

Turning
    next to whether Manasseri has shown cause why his detention is not justified
    under s. 515(10) of the
Criminal Code
, I am not persuaded he has done
    so.

[40]

At
    the outset, I readily acknowledge that for several years prior to trial and for
    about a year after his release pending the determination of his appeal, no
    failures to comply were recorded. Further, the proposed fresh evidence, if
    accepted, appears to present an arguable basis for a new trial.

[41]

The
    story could have ended there. And would have ended happily for Charlie
    Manasseri. But he could not leave well enough alone. He decided to add another
    chapter, one that has a different ending. And not a happy ending.

[42]

Single-handedly,
    Charlie Manasseri converted a chance sighting at a gas station into what at
    first appears a clumsy attempt at witness intimidation. He knew that he was not
    to communicate, either directly or indirectly with anyone who had been a
    witness at his trial for second degree murder. He recognized Dr. Ayroud. He
    knew she had been a witness. Not just any witness, but the witness whose
    evidence explained what caused Brian Fudges death and, as a result, laid
    responsibility for that death right at Charlie Manasseris doorstep. He
    complained to her of his plight. He spoke of the need to get evidence to
    contradict her. And to make his point that he was not responsible for Brian
    Fudges death, he pounded on a panel to demonstrate the damage he could have
    done had he been minded to do so. That Dr. Ayroud was not intimidated is beside
    the point.

[43]

When
    these events occurred, Charlie Manasseri was bound by the terms of a
    recognizance not to communicate with anyone who testified at his trial. His
    brother and sister-in-law had pledged $125,000 to ensure his compliance with
    the terms of his release. That was not enough to deter him from intentionally
    communicating with a critical witness. Frustration with the pace of appellate
    proceedings affords no justification for this conduct. Adding a surety,
    increasing the amount of the recognizance or tightening up its terms seem
    unlikely to enhance the prospect of compliance.

CONCLUSION

[44]

The
    release order is revoked. The recognizance is cancelled. No new recognizance
    will issue.

[45]

I
    leave open the prospect of a further application on fresh material including a
    schedule for expedited completion of the fresh evidence record, perfection of
    the appeal and disposition of the outstanding charge of failure to comply.

Released: January 6, 2015 (DW)

David
    Watt J.A.

[1]
Under s. 2 of the
Criminal Code
,
    superior court of criminal jurisdiction includes both the Court of Appeal and
    the Superior Court of Justice.

[2]
Under s. 34(1)(a) of the
Interpretation
    Act
, R.S.C. 1985, Chapter I-21, as amended, an offence is deemed indictable
    if D may be prosecuted for the offence by indictment.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mufuta, 2015 ONCA 50

DATE: 20150128

DOCKET: C54811

Strathy C.J.O., Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muamba Mufuta

Appellant

Ian Carter, for the appellant

Kevin Rawluk, for the respondent

Heard: October 24, 2014

On appeal from the conviction entered on September 22,
    2011 by Justice Bruce W. Duncan of the Ontario Court of Justice, sitting
    without a jury.

Cronk J.A.:

[1]

Following a trial by judge alone, the appellant was convicted of one
    count of voyeurism arising from an incident in a womens washroom at a restaurant.
    He appeals from his conviction on the sole ground that the verdict is
    unreasonable.

Background in Brief

[2]

As a female employee of a restaurant was preparing to leave one of two
    stalls in the womens washroom at the restaurant, she noticed a man peering
    down at her from the adjoining stall.  The woman ran from the washroom,
    screaming.

[3]

Identity was the only issue at trial.  The Crowns case against the
    appellant was mainly circumstantial.

[4]

The complainant was unable to identify
    the perpetrator.  She provided a generic description of the suspect, describing
    him as a black man with a shaved head.  Three other restaurant employees also
    furnished only general descriptions of the perpetrator.

[5]

Shortly before the incident, three
    black men entered the restaurant, ordered food and drinks, and sat together to
    eat.  Each of the men fit the general description of the voyeur, as did the appellant.

[6]

A restaurant surveillance tape captured
    the image of a black man entering the washroom area at about 2:45 p.m. on the afternoon
    in question.  The tape showed the complainant entering the area two minutes
    later, and the same black man exiting at 2:48 p.m.  A police officer viewed the
    tape shortly after the incident.  He could not identify or exclude the
    appellant as the black man depicted in the tape.  The contents of the tape were
    recorded over before the police sought to retrieve the tape, some three weeks
    after the incident.  As a result, the tape was unavailable at trial to assist
    in the identification of the perpetrator.

[7]

After the incident, the police seized a
    partially full bottle of pop from the top of the toilet tank in the washroom
    stall where the victim saw the perpetrator.  On subsequent testing, the
    appellants DNA was identified on and around the mouth of the pop bottle.  Apart
    from the DNA evidence, there was no evidence at trial that the appellant had
    ever been in the restaurant or that he was one of the black men dining in the
    restaurant at the time of the offence.  However, a DNA expert testified at
    trial that forensic examination of the pop bottle yielded only a single source
    DNA profile.  She also said that the testing established that the appellant was
    the last person to drink from the pop bottle.

[8]

The restaurant surveillance tape did
    not show anyone entering the washroom area with a pop bottle.  However, as the
    washrooms were cleaned daily, the pop bottle had to have been placed in the
    washroom sometime on the day in question.

[9]

The appellant was arrested
    approximately three months after the incident.  He did not testify at his
    trial.

Trial
    Judges Decision

[10]

The trial judge concluded that, apart
    from the evidence of the appellants DNA on the pop bottle, the remaining
    identification evidence was completely neutral.  In his view, the non-DNA
    evidence merely established that, in addition to the appellant, there were at least
    two black men in the restaurant and possibly one other in the washroom area who
    fit the general description of the perpetrator.

[11]

The trial judge was satisfied that the
    appellants DNA was on the pop bottle, the appellant was the last person to
    drink from the bottle, and the bottle was left in the relevant stall of the
    womens washroom sometime on the day in question.

[12]

In these circumstances, the trial judge
    concluded that only three possible scenarios arose: 1) the appellant was the
    perpetrator; 2) the appellant left the pop bottle in the washroom earlier in
    the day, before the incident occurred; or 3) another man, of similar appearance
    to that of the appellant, carried the pop bottle into the womens washroom and
    committed the offence.

[13]

In the trial judges view, the last two
    scenarios were fanciful or speculative, unlikely and totally lacking in
    evidentiary support.  He therefore rejected them as, in effect, irrational conclusions
    that did not give rise to a reasonable doubt regarding the appellants
    culpability.  He concluded, to the requisite criminal standard of proof, that
    the only rational conclusion on the whole of the evidence was that the
    appellant was guilty of the offence charged.

Grounds
    of Appeal

[14]

The appellant argues that his guilt was
    not the only reasonable inference available on the totality of the evidence and
    that, as a result, the verdict is unreasonable.  In support of this argument,
    he contends that the trial judge erred by examining whether the evidence
    established that someone other than the appellant brought the pop bottle into
    the washroom.  The appellant says that the correct approach was to determine
    whether there was evidence that established beyond a reasonable doubt that the
    appellant was the person who brought the pop bottle into the washroom.

Discussion

(1)

Test for an Unreasonable Verdict

[15]

The test for finding an unreasonable
    verdict is well-settled.  In
R. v. Biniaris
, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, Arbour J.
    said:

The test for an appellate court
    determining whether the verdict of a jury or the judgment of a trial judge is
    unreasonable or cannot be supported by the evidence has been unequivocally
    expressed in
Yebes
as follows:

[C]urial review is invited whenever a jury goes beyond a
    reasonable standard . [T]he test is whether the verdict is one that a
    properly instructed jury acting judicially, could reasonably have rendered.

[16]

Justice Arbour elaborated, at para. 37:

The
Yebes
test is expressed in terms of a verdict reached by a
    jury.  It is, however, equally applicable to the judgment of a judge sitting at
    trial without a jury.
The review for unreasonableness on appeal is
    different, however, and somewhat easier when the judgment under attack is that
    of a single judge, at least when reasons for judgment of some substance are
    provided.  In those cases, the reviewing appellate court may be able to
    identify a flaw in the evaluation of the evidence, or in the analysis, that
    will serve to explain the unreasonable conclusion reached, and justify the
    reversal.

See also
R. v. Sinclair
, 2011 SCC 40, [2011]
    3 S.C.R. 3;
R. v. D.D.T.
, 2009 ONCA 918, 257 O.A.C. 258.

[17]

In
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, Fish J., at para. 98,
    dissenting in the result but not on this point, added this important caveat
    regarding an appeal from a decision of a judge alone based on an unreasonable
    verdict claim:

But where reasons do exist, a verdict
    cannot be reasonable within the meaning of s. 686(1)(a)(i) [of the
Criminal
    Code
] if it is made to rest on findings of fact
    that are demonstrably incompatible, as in this case, with evidence that is
    neither contradicted by other evidence nor rejected by the judge.

See also
R. v. R.P.
, 2012 SCC 22, [2012] 1
    S.C.R. 746, at para. 9
per
Deschamps J.

(2)

Application of the Test in this Case

[18]

I am not persuaded that the appellant
    has met the exacting test for the demonstration of an unreasonable verdict.

[19]

As I have said, the trial judge
    described the non-DNA identification evidence  the eyewitnesses descriptions
    of the perpetrator and the police officers account of what he had seen on the
    surveillance video  as completely neutral on the key issue of
    identification.

[20]

This is a fair characterization of the
    non-DNA identification evidence.  The witnesses generic descriptions of the
    man they saw in the vicinity of the restaurant washroom and the police
    officers observations of the images on the surveillance tape did not
    strengthen the Crowns case on identification.  That said, the footage from the
    restaurant surveillance tape did establish that a black man entered the
    washroom area around the time of the crime, followed immediately thereafter by
    the complainant.

[21]

Relying on this courts decision in
R.
    v. Mars
(2006), 206 O.A.C. 387, 205 C.C.C. (3d)
    376 and
R. v. Wills
, 2014 ONCA 178,
    308 C.C.C. (3d) 109, the appellant argues that the DNA evidence, standing
    alone, was not capable of supporting the inference that he was the man who
    brought the pop bottle into the washroom area and was seen by the complainant.
    He submits there had to be other evidence that, combined with the DNA evidence,
    would permit a finding that he was the perpetrator because the DNA evidence
    alone failed to establish when his DNA was placed on the pop bottle and when
    the bottle was left in the washroom and by whom.

[22]

The appellant further submits that the
    trial judge erred by presuming that the mere presence of the appellants DNA on
    the pop bottle was highly inculpatory, requiring the appellant to demonstrate
    that there was some other rational explanation  other than his guilt  for the
    presence of his DNA on the pop bottle found in the washroom.

[23]

I would reject these submissions for
    several reasons.

[24]

First, in my opinion, the appellant
    understates the significance of the DNA evidence.  The appellants DNA on the
    pop bottle found in the washroom stall occupied by the perpetrator was a
    powerful piece of evidence linking the appellant to the scene of the crime.
    Before this court, the appellant accepts that the presence of his DNA on the
    pop bottle, coupled with the expert evidence regarding the single DNA profile
    on the bottle, supported the inferences that he drank from the pop bottle and
    that he was the last person to do so.

[25]

Second, as the Crown points out, while
    the DNA evidence was the centrepiece of the Crowns case on identification, it
    did not stand alone.  The totality of the evidentiary record establishes that:

·

a black man who was physically
    similar to the appellant was caught on the restaurant surveillance footage
    entering the washroom area two minutes before the complainant.  The same black
    male exited the washroom approximately one minute after the complainant entered
    the washroom;

·

the police secured the womens washroom so that nobody entered
    after the incident;

·

the partially consumed pop bottle was found on the toilet tank in
    the same washroom stall where the complainant observed the perpetrator;

·

the washrooms were cleaned every night.  It followed that the pop
    bottle had to have been left in the womens washroom on the day of the
    incident;

·

only the appellants DNA was found on the pop bottle, even though
    the entire mouth area of the bottle was swabbed for testing.  There were also
    no identifiable fingerprints found on the pop bottle.

·

three black men, each of whom matched the general description of
    the perpetrator, were dining together in the restaurant on the day of the
    incident;

·

the three black men fled the restaurant after the complainant
    emerged from the washroom;

·

there was no evidence that anyone other than the appellant had
    actually handled the pop bottle or drank from it;

·

the appellant was the last person to drink from the pop bottle;

·

there was no evidence linking anyone other than the appellant to
    the washroom stall in which the perpetrator was observed; and

·

the appellant fit the generic description of the perpetrator
    provided by eyewitnesses.

[26]

In my view, based on these undisputed
    facts, a reasonable trier of fact could have concluded that the appellant was
    the voyeur.  There was no evidence at trial to support any other explanation
    for the presence of a pop bottle, bearing only the appellants DNA, in the
    stall of the womens washroom occupied by the perpetrator.  In these
    circumstances, in my opinion, it would stretch coincidence beyond the realm of
    reasonableness to speculate that the appellant innocently deposited the pop
    bottle earlier the same day into the same stall in the womens washroom or that
    someone other than the appellant deposited the pop bottle used by the appellant
    in the washroom stall while committing the offence.

[27]

Third, in my view, the appellants
    reliance on the decisions of this court in
Mars
and
Wills
is
    misplaced.  Both
Mars
and
Wills
are distinguishable from this case.

[28]

Mars
and
Wills
both involved accuseds charged with criminal offences
    arising from home invasions.  In
Mars
,
    the victim heard a knock at his door and observed an unmasked man holding a
    pizza box.  When the victim opened the door to inform the man that he had not
    ordered any pizza, three men swarmed into the house.

[29]

As in this case, identity was the sole
    issue at trial.  The victim was unable to identify the man carrying the pizza
    box.  However, a neighbour observed three men running away from the victims
    house.  He described the men as three black youths.

[30]

In addition, the pizza box contained
    three fingerprints, one of which matched the appellants fingerprints.  At
    trial, expert evidence established that it was not possible to date the
    appellants fingerprint or determine when it was placed on the pizza box.
    Indeed, the Crowns expert acknowledged that fingerprints could remain on a
    pizza box for several years.

[31]

On appeal by the accused from his
    conviction, this court set aside the conviction because the circumstantial
    evidence did not reasonably support the inference that the appellants fingerprint
    was left on the pizza box at the time of the robbery.  To the contrary, it was
    just as reasonable to infer that his fingerprint was left on the pizza box at
    some time before the robbery.  In addition, several other factors worked against
    a finding of guilt: 1) although the accuseds appearance was consistent with
    the victims description of one of the three robbers, the victims description
    of that robber was so general that it could not inculpate the accused; and 2) because
    the accused was a white man, the neighbours evidence of his sighting of three
    black youths effectively excluded the accused as one of the robbers.

[32]

These facts set this case apart from
Mars
.  Unlike the fingerprint evidence in
Mars
, in this case, the only DNA found on the pop bottle was
    that of the appellant and other evidence at trial established that the pop bottle
    must have been left in the washroom on the same day as the day of the offence.
    Further, unlike this case, the expert evidence in
Mars
established that the accuseds fingerprint could have been
    deposited on the pizza box on another occasion.  For example, the robbers could
    have found the pizza box in the trash and used it to commit the offence.  Finally,
    in contrast to the neighbours testimony in
Mars
, there was no affirmative evidence at the appellants
    trial excluding him as the perpetrator.

[33]

For similar reasons,
Wills
does not assist the appellant.  In
Wills
, two men, both wearing bandannas to mask their faces,
    forcibly entered a home occupied by two individuals.  One of the invaders
    viciously attacked one of the occupants with a baton.  During the attack, the
    victim pulled a white bandanna from the assailants face.  The police later
    found the white bandanna.  They also discovered a second, blue bandanna in a
    ravine used as the escape route by the assailants.  A footprint discovered near
    the second bandanna matched a footprint found at the victims home.

[34]

On testing of the white bandanna, the
    DNA of at least three people was detected.  One of the DNA samples matched the accuseds
    DNA.  The blue bandanna was also subjected to DNA testing, revealing the DNA of
    at least two individuals.  Again, one of the DNA samples matched the accuseds DNA.

[35]

However, at trial, a DNA expert was
    unable to estimate how long the DNA may have been on the bandannas.  He also
    noted that the robbers may not have left any DNA on the bandannas.

[36]

Further, neither homeowner could
    identify the assailant who wielded the baton.  The victim of the assault simply
    described his assailant as a black man, 5 feet 7 inches or 5 feet 8 inches
    tall, with a slim face and small frame.  The second homeowner was held at
    gunpoint by the other intruder.  She provided only a general description of the
    man with the gun, describing him as a tall man of average build who spoke
    Italian.

[37]

After the incident, the police seized a
    metal baton from the accuseds home.  The victim of the assault described the
    baton as similar to the one used in the attack but also said that he believed
    the attacker had used a weapon with a wooden handle.  He also identified three
    other slight differences between the weapons.

[38]

The trial judge convicted the accused of
    a series of offences arising out of the home invasion.  On appeal, the
Wills
court was not satisfied that the DNA evidence alone could
    support the inference that the accused was one of the perpetrators or that
    either bandanna belonged to the accused.  Because the Crowns expert evidence
    did not establish when the accuseds DNA was deposited on the bandannas, the
    Crowns own evidence precluded those inferences based exclusively on the DNA
    evidence.  As a result, as with the fingerprint evidence in
Mars
, there had to be other evidence which, combined with the
    DNA evidence, would permit a finding that the accused was the perpetrator:
Wills
at para. 36.

[39]

The
Wills
court went on to conclude that the inference of the
    accuseds guilt was otherwise supportable on the facts.  In particular, there
    was evidence that the accused had a baton at his house  an uncommon household
    item  that resembled the baton used in the attack.  Further, unlike
Mars
, where the neighbours exculpatory description of the
    assailants diminished the potential force of the circumstantial evidence
    linking the accused to the home invasion, the non-DNA identification evidence
    in
Wills
was neutral.  Finally, the
    accuseds DNA was found on both of the bandannas, further supporting the
    finding that he was involved in the attack.

[40]

In this case, as I have emphasized, only
    the appellants DNA was found on the pop bottle discovered in the restaurant
    washroom.  This fact increases the probative force of the DNA evidence,
    connects the appellant to the scene of the crime, and supports the inference
    that he left the pop bottle in the washroom.  It also renders less reasonable
    any inference that someone other than the appellant used the pop bottle.

[41]

In addition, in contrast to
Mars
and
Wills
, there
    was evidence in this case supporting the inference that the appellants DNA was
    deposited on the pop bottle at or around the time of the offence: 1) the
    appellant was the last person to drink from the bottle; 2) the bottle was part-full,
    suggesting that the appellants DNA had been recently deposited on the bottle;
    3) given the washroom cleaning schedule, the pop bottle had to have been left
    in the washroom on the day of the incident; 4) the pop bottle was found in the
    womens washroom at the restaurant  a place the appellant had no right to be;
    and 5) the pop bottle was discovered in the exact stall used by the voyeur.

[42]

I would therefore reject the
    appellants contention that, on the authority of
Mars
and
Wills
, the
    verdict in this case is unreasonable.

[43]

Fourth, I regard this case as analogous
    to the decisions in
R. v. Dewar
, 2003
    CanLII 48229 (Ont. C.A.) and
R. v. Gauthier
, 2009 BCCA 24, 264 B.C.A.C. 298.  In
Dewar
, a restaurant was burglarized during a series of break-ins
    at a shopping mall.  The police discovered a pop bottle in the restaurant
    managers office that, on testing, was found to contain the accuseds DNA,
    together with that of a co-accused, on the mouth of the bottle.  The co-accused
    pled guilty to the offence with which he was charged arising out of the
    break-ins, and his admission was an agreed fact at the accuseds trial.  The
    employees of the restaurant were not permitted to drink canned pop in the
    restaurant, and there was no innocent explanation for the presence of the pop
    bottle, bearing the accuseds DNA, in the managers office.

[44]

The trial judge found that it was
    illogical that someone other than the accused would bring the pop bottle into
    the shopping mall and carry it from establishment to establishment when several
    of the burglarized shops had pop readily available.  Further, in the trial
    judges view, since little of the pop had been consumed, the pop bottle was not
    brought into the mall to be consumed while the perpetrators hid.  The trial
    judge therefore concluded that the pop was consumed by the accused and his
    co-accused during the break-in.  In other words, the accused was present at the
    break-in as one of the perpetrators.  On appeal, this court concluded that the
    trial judges reasoning was not speculative and the verdict was not
    unreasonable.

[45]

A similar result obtained in
Gauthier
.  In that case, a residence was broken into and a beer
    bottle bearing the accuseds fingerprint was found on the victims bed,
    together with various other assorted items that had been strewn about.  The
    accused argued that the beer bottle could have been brought into the residence
    by a friend of the victim with whom the accused associated.  Alternatively, an
    intruder could have brought the bottle into the residence after the accused had
    handled it.

[46]

The British Columbia Court of Appeal
    rejected the accuseds claim that his conviction was unreasonable, holding, at
    paras. 11-12, that his exculpatory hypotheses were speculative.  The court
    noted that there was no evidence that the accused might have innocently handled
    the beer bottle at some other time and place.  Nor was there any
    non-speculative explanation on the evidence for the presence of the beer bottle
    bearing the accuseds fingerprint.  The only reasonable explanation was that
    the accused was the intruder who broke into the residence and relocated many
    items in it, including the beer bottle.

[47]

This reasoning is apt here.  On the
    totality of the evidence in this case, there is no evidentiary foundation for
    any explanation of the presence of a partially-consumed pop bottle, bearing the
    appellants DNA, in the exact washroom stall used by the perpetrator, other
    than that the appellant was the voyeur.  In particular, there is simply no
    evidence that anyone other than the appellant ever handled the pop bottle or
    drank from it.  Nor is there any evidence linking anyone other than the
    appellant to the washroom stall occupied by the perpetrator.

[48]

Finally, I am mindful of the
    appellants argument that the trial judge erred, in effect, by placing the onus
    on the appellant to demonstrate that there was some other rational conclusion,
    apart from the appellants guilt, for the presence of the pop bottle bearing
    the appellants DNA found in the washroom.

[49]

I would reject this argument.  The
    reasons confirm that the trial judge was alert to the applicable test for
    assessing guilt or innocence in a circumstantial case.  He expressly
    considered, as he was obliged to do, whether the appellants guilt was the only
    reasonable inference to be drawn from the facts established on the whole of the
    evidence: see
R. v. Cooper
, [1978] 1
    S.C.R. 860.  In so doing, in my view, he did not reverse the burden of proof.
    To the contrary, he expressly instructed himself that, The Crown must prove
    guilt beyond a reasonable doubt, which burden carries with it, in a
    circumstantial case, the duty of excluding all rational conclusions alternative
    to guilt.  I see no basis for appellate interference with the trial judges
    conclusion that the Crown met this burden in this case.

Disposition

[50]

For these reasons, I would dismiss the
    appeal.

Released:

GRS                                                E.A.
    Cronk J.A.

JAN 28 2015                                     I
    agree G.R. Strathy C.J.O.

I
    agree C.W. Hourigan J.A.


WARNING

The President of the panel hearing
this appeal directs that the following should be attached to the file:

An order restricting publication in
this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or
(9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
486.4, on application of the prosecutor, a victim or a witness, a judge or
justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is satisfied that the order is
necessary for the proper administration of justice.

(2)     On application of a justice system
participant who is involved in proceedings in respect of an offence referred to
in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or
justice may make an order directing that any information that could identify
the justice system participant shall not be published in any document or
broadcast or transmitted in any way if the judge or justice is satisfied that
the order is necessary for the proper administration of justice.

(3)     An order made under this section does not
apply in respect of the disclosure of information in the course of the
administration of justice if it is not the purpose of the disclosure to make
the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
justice or, if the judge or justice has not been determined, to a judge of a
superior court of criminal jurisdiction in the judicial district where the
proceedings will take place; and

(b) provide notice of the application to the
prosecutor, the accused and any other person affected by the order that the
judge or justice specifies.

(5)     An applicant for an order shall set out the
grounds on which the applicant relies to establish that the order is necessary
for the proper administration of justice.

(6)     The judge or justice may hold a hearing to
determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
that the victim, witness or justice system participant would suffer significant
harm if their identity were disclosed;

(c) whether the victim, witness or justice system
participant needs the order for their security or to protect them from
intimidation or retaliation;

(d) societys interest in encouraging the
reporting of offences and the participation of victims, witnesses and justice
system participants in the criminal justice process;

(e) whether effective alternatives are available
to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
proposed order;

(g) the impact of the proposed order on the
freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
considers relevant.

(8)     An order may be subject to any conditions
that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
an order, no person shall publish in any document or broadcast or transmit in
any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions
made at a hearing under subsection (6); or

(c) any other information that could identify the
person to whom the application relates as a victim, witness or justice system
participant in the proceedings.  2005, c. 32, s. 15.

486.6 (1)  Every person who fails to comply with an
order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
in subsection (1) applies to prohibit, in relation to proceedings taken
against any person who fails to comply with the order, the publication in any
document or the broadcasting or transmission in any way of information that
could identify a victim, witness or justice system participant whose identity is
protected by the order. 205, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N. F.,
2015 ONCA 51

DATE: 20150127

DOCKET: C57468

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N. F.

Appellant

Adetayo G. Akinyemi, for the appellant

Amy Rose, for the respondent

Heard: January 21, 2015

On appeal from the sentence imposed on July 29, 2013 by
Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

A jury found the appellant guilty of aggravated assault and assault
with a weapon in connection with second degree burns she inflicted on her ten
year old son by pressing a hot iron against both his arms. The trial judge
entered a conviction on the count of aggravated assault and a
Kienapple
stay on the count of assault with a weapon.

[2]

The appellant, who has been on bail pending appeal for about 16 months,
seeks to have the 20 month carceral portion of the sentence imposed upon her
reduced to a term of imprisonment of five months. She does not contest the
period of probation and the several ancillary orders imposed by the trial
judge. She also seeks leave to introduce fresh evidence in support of her claim
for a reduction in her sentence.

[3]

The appellants complaints, reduced to their essence, are that the trial
judge:

i.

overemphasized the sentencing objectives of denunciation and deterrence;

ii.

misapprehended the relevant range of sentence and thus failed to give
effect to the principle of parity; and

iii.

failed to appreciate and give proper effect to the potential immigration
consequences of the sentence to be imposed.

[4]

The circumstances of the offence revealed conduct that extends well
beyond excessive discipline as the appellant would characterize it.

[5]

When the appellant returned home from work one day, the victims older
brother told her that the victim, contrary to the appellants edict, had taken
some food out of the refrigerator and had eaten it. The victim denied it. The
appellant instructed her older son to get her iron and to plug it in. She then
embarked on a lengthy interrogation of the victim in an effort to obtain a
confession from him. No admission was forthcoming. The appellant burned the
victim on one of his arms with the hot iron. Still no confession. The appellant
burned her son on his other arm.

[6]

The appellant, who worked as nurse, did not provide or seek any medical
assistance for the victims burns. His injuries, second degree burns, were
noticed by a gym teacher at school. Police were called.

[7]

Childrens Aid authorities apprehended all three of the appellants
children and placed them in foster care.

[8]

The appellant is a permanent resident of Canada having emigrated here
from Nigeria in 2006. She has no prior convictions. She was gainfully employed
and is a person of strong religious convictions. A psychiatric report prepared
for sentencing describes her as suffering from a personality disorder of
substantial degree involving easy prevarication, substantial moral indifference
and a striking lack of capacity for self-doubt.

[9]

We would not interfere with the sentence imposed. The carceral portion
of the sentence was within the range of sentence for this offence and offender.
The predominant sentencing objectives, recognized and applied by the sentencing
judge, were denunciation and deterrence. This offence involved an egregious
breach of trust, consisting not only of the abuse of a child of ten years, but
also of the recruitment of his older brother to bring the tools of that abuse
to his mother, the abuser. Remorse was not evident before the sentencing judge.
The appellant rejects any suggestion of fault and appears unamenable to
treatment.

[10]

We
accept that no one told the trial judge about the specific immigration
consequences of a carceral term of six months or more. Crown counsel did point
out to the trial judge the appellants immigration status (which the appellant
confirmed) and reminded the judge of the need to consider immigration
consequences in determining the sentence to be imposed. The sentencing reasons
do not reflect, however, any express consideration of the precise issue raised here.

[11]

The
failure to consider the specific immigration consequences of a carceral
sentence of six months or more was an error in principle disentitling the sentencing
judges decision to the deference usually accorded to such decisions in this
court. Left to consider the fitness of the sentence, as is our mandate under s.
687 of the
Criminal Code
, we are satisfied, however, that in this case
and despite those consequences, the sentence imposed reflects no error.

[12]

The
term of imprisonment sought by the appellant to preserve a right of appeal
against a removal order for a person who is and will remain inadmissible in
Canada by virtue of her conviction would accord a collateral consequence a
significance well beyond its due. The result would be, in this case, the
imposition of a sentence outside the range of sentence appropriate for this
offence and the offender who committed it as well as one that would fail to
apply the relevant sentencing objectives of deterrence and denunciation and the
fundamental principle of proportionality.

[13]

Although
leave to appeal sentence is granted, the appeal against sentence is dismissed.

K.M. Weiler J.A.

David Watt J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Okash, 2015 ONCA 58

DATE: 20150130

DOCKET: C57815

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Abdifatah Okash

Respondent

Carol Cahill, for the appellant

James D. M. Clark, for the respondent

Heard: January 21, 2015

On appeal from the sentence imposed on October 10, 2013
    by Justice Ramez Khawly of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The respondent was convicted after pleading guilty to trafficking in a
    substance held out to be cocaine. The Crown and defence jointly recommended the
    mandatory minimum sentence of one year in custody (required because the
    respondent had been convicted for trafficking a schedule 1 substance within the
    previous ten years), reduced by the respondents pre-trial custody of 129 days.
    The Crown suggested credit at a rate of 1:1, while the defence sought credit at
    a rate of 1.5:1 based on the loss of earned remission. The sentencing judge
    imposed the mandatory minimum sentence, but reduced the sentence by giving the
    respondent 2:1 credit for his pre-trial custody, leaving a total of 107 days to
    be served. The sentencing judge indicated that he found the mandatory minimum
    sentence inequitable because it did not permit the court to consider the fact
    that the substance sold by the respondent was not in fact cocaine. The
    appellant served the sentence imposed by the trial judge.

[2]

The Crown appeals on the basis that the sentencing judge imposed an
    illegal sentence, when he exceeded the credit for pre-sentence custody
    permitted under s. 719(3.1) of the
Criminal Code
. If the correct
    sentence had been imposed and the trial judge had not erred in giving the
    respondent two for one credit for each day of pre-sentence custody (instead of
    the maximum permitted under the
Criminal Code
of 1.5 for one), the
    respondent would have a further 65 days to serve in custody.

[3]

The respondent acknowledges that the sentence was illegal, but asks for
    a stay of the balance of the sentence. He relies on the authority of this
    court, after correcting the sentencing error, to stay the sentence as part of
    the imposition of a just sanction: see
R. v. Smickle
, [2014] O.J.
    No. 258 (C.A.), at paras. 8 to 20.

[4]

The appellant asserts that the respondent should be required to serve
    the balance of his sentence in custody. Unlike the respondent in
Smickle,
Mr.
    Okash has not made any progress toward rehabilitation and his recent arrest,
    guilty plea and incarceration for a similar offence suggest that he would not
    suffer hardship by serving the balance of his sentence in custody.

[5]

There are factors however that weigh in favour of a stay in this case.
    The error of the sentencing judge in granting excessive credit for pre-sentence
    custody was apparent as soon as sentence was passed. The Crown did not draw
    this error to the attention of the sentencing judge. The Crown appealed,
    however a lengthy delay ensued before the 15 page transcript of the sentencing
    hearing was prepared. The respondent pleaded guilty and served the sentence
    imposed. The period of time remaining to be served is relatively short and the
    correct sentence is not disproportionate to the sentence that was imposed. In
    these circumstances, the principles of deterrence and denunciation that are key
    in sentencing for an offence of this type, would be met without the necessity
    of re-incarceration of the respondent at this stage in the proceedings.

[6]

Accordingly, the appeal is allowed. The correct sentence would have been
    the mandatory sentence of one year, less 161 days, as 1.5:1 credit for the
    appellants time served in pre-sentence custody. Execution of the balance of
    the sentence not yet served by the respondent is permanently stayed.

Alexandra Hoy A.C.J.O.

K.
    van Rensburg J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Olumide, 2015 ONCA 18

DATE: 20150113

DOCKET: C59347

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario

Respondent

and

Ade Olumide

Applicant

Ade Olumide, in person

Mark Wiffen,
amicus curiae

Karen
Papadopoulos
, for the
    respondent

Heard: January 7, 2015

On appeal from the order of Justice Lynn D. Ratushny of the
    Superior Court of Justice, dated September 10, 2014.

[1]

Assuming that the Justice of the Peace erred in not receiving the
    information, we agree with the Crown that the procedural error caused no harm
    to the appellant.  The subject matter was essentially the same as in a previous
    matter that was stayed by the Crown.  That proceeding had also been brought by
    the appellant albeit against a different person.  That stay was upheld by the
    Superior Court and by in this court in C59279.  The Justice of the Peace would
    inevitably have refused to issue process in these circumstances or
    alternatively the Crown would have stayed this proceeding.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Opeyemi, 2015 ONCA 41

DATE: 20150123

DOCKET: C56076

Feldman, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Olawale Opeyemi

Appellant

Laurence Cohen, for the appellant

Jocelyn Speyer, for the respondent

Heard and released orally: January 12, 2015

On appeal from the conviction entered on July 27, 2012 by
    Justice W. Brian Trafford of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted in a judge alone trial of kidnapping and
    unlawful confinement after a trial with three co-accused.  The appellant was represented
    by counsel until the 11
th
day of the 13 day trial.  Although the
    appellant did not testify, he conducted his own defence for the last two days.
    The main issue at the trial was identity. Recordings of the kidnappers voice
    formed part of the evidence at trial.

[2]

Three men, not including the appellant, kidnapped the victim, Nana, in
    Toronto and transported him to Hamilton.  Nana was physically confined in the
    basement of a home there, burned with an iron and threatened if a ransom was
    not paid.  That night, two men, one of whom Nana described as having a thick
    Nigerian accent and whose face was obscured by a hairnet, visited Nana and
    threatened to kill his mother if a ransom was not paid.

[3]

The kidnappers contacted Nanas friends and associates and demanded a
    ransom.  Nanas friends contacted police.  The police intercepted the telephone
    communications of the parties to the kidnapping.  At the direction of the
    police, one of Nanas friends arranged to meet the kidnappers to deliver the
    ransom.  That attempted delivery was not successful.  The kidnappers then
    arranged a second meeting with the friend at which the appellant was allegedly
    to obtain the ransom.  The vehicle driven by the appellant and of which he was
    the sole occupant was followed by the police.  The vehicle was close to and
    tracked the path of the vehicle operated by the friend who was to deliver the
    ransom.  When the appellant was arrested, the telephone that was used for
    discussions with the friend about the delivery of the ransom and between the
    parties to the kidnapping was found in his pocket with the earpiece in his ear.
    Cell tower evidence tracked the phone from Scarborough the day before the
    kidnapping to Hamilton around the time of the kidnapping and back to Toronto to
    the area where the ransom was to be delivered.

[4]

The trial judge was satisfied beyond a reasonable doubt that the
    appellant committed the alleged offences as a principal offender or as a
    person who aided or abetted the other perpetrators.  He found, based on the
    surveillance by police, the intercepted cellphone conversations and cell tower
    records, that:

(a)   the appellant was the
    sole occupant of the black Honda police had followed as the delivery of the
    ransom to the friend was arranged by the cellphone conversations;

(b)   the phone recovered in
    the appellants possession with an earpiece connected to the phone in the
    appellants ear at his arrest was the same phone used to contact the friend as
    well as another kidnapper;

(c)   it was the appellant
    who participated in the intercepted telephone conversations making arrangements
    for the pick-up of the ransom;

(d)   the appellant was the
    person whose face had been obscured the night before and who made the threats.

[5]

The appellants counsel, at his own request, was removed from the record
    for ethical reasons on the 11
th
day of the 13 day trial.

[6]

On appeal, the appellant originally argued that the trial judge erred in
    four respects:

1.    The trial judge failed to
    adequately explain the danger to the appellant of acting on his own behalf
    because by speaking in the courtroom of necessity because he was
    self-represented, the appellant would allow the judge to compare his voice to
    the voices heard on the intercepted cellphone conversations.

2.    Although the trial judge
    did not use the voice of the appellant in the courtroom to support his
    conclusions and disavowed use of that evidence, his alternative conclusion that
    he would have found that the appellants voice in the courtroom was the voice
    on the intercepted communications created an appearance of unfairness.

3.    The appellant did not
    waive his right to have counsel.

4.    The trial judge erred in
    failing to label the appellant as either a principal or an aider or abetter to
    the offences.  This last alleged error was abandoned in oral argument.

[7]

The trial judge indicated that he was satisfied beyond a reasonable
    doubt by evidence other than the appellants voice as heard in the courtroom
    that the appellant participated in the kidnapping.  This was a reasonable
    conclusion available to him on the evidence he heard.  In response to arguments
    made at trial about the propriety of comparing the appellants voice as heard
    in the courtroom to the voice heard on the intercepted cell phone
    conversations, he indicated that it was not necessary to decide that question
    but that if he had been required to decide that issue, he would have found that
    the two voices were the same.  This alternative conclusion does not undermine
    the strength of the reasons given for the findings of guilt nor contaminate
    them with any improper line of reasoning.  The trial judge did not err in
    responding to the arguments made to him and no appearance of unfairness was
    thereby created.

[8]

The appellant was not prejudiced in any way by having to use his own
    voice to act on his own behalf because the trial judge did not use that
    evidence as a basis for conviction.  For that reason, it is not necessary to
    express any opinion as to the acceptability of such a course or whether the
    trial judge should have expressly warned him about the dangers of
    self-representation in these circumstances.

[9]

At least two of the appellants co-accused were in custody when the
    appellants counsel was removed.  The appellant had had at least four different
    counsel speak or act on his behalf during the history of these proceedings.
    After his trial counsel was removed, the following exchange occurred in the
    courtroom:

Opeyemi:     I said thats all I want to do, to say my piece,
    my part of this situation.

The Court:   You are content to defend yourself, are you,
    without the help of a lawyer?

Opeyemi:     Your Honour, everything is almost done already.
    There is nothing for me to do anything.

[10]

The
    appellant cross-examined relevant remaining witnesses and made closing
    submissions.  There is nothing in the record to suggest that his position was
    not adequately put to the trial judge.  Given all these circumstances, the
    trial judge did not err in permitting the appellant to represent himself and
    did not err in the manner in which he dealt with the appellant.

[11]

The
    trial judges findings of guilt were amply supported by the evidence.  The
    Crown submits that if the conviction for kidnapping is upheld, the conviction
    for unlawful confinement should be stayed pursuant to
R. v. Kineapple,
[1975] 1 S.C.R. 729 and
R. v. Vu
, 2012 SCC 40; [2012] 2 S.C.R. 198.
    We agree and the conviction for unlawful confinement is stayed.  Otherwise the
    appeal is dismissed.

K. Feldman J.A.

Janet Simmons J.A.

G. Pardu J.A.