Court of Appeal for Ontario

Citation: R. v. Bankole, 2008 ONCA 669

Date: 20081002

Docket: C44162

Between:

Her Majesty The Queen

Respondent

and

Samuel Olalekan Bankole

Appellant

Counsel:

Apple Newton-Smith for the appellant

Nadia Thomas for the respondent

Heard and released orally: September 25, 2008

On appeal from the conviction entered on August 9, 2005 and the sentence imposed on September 13, 2005, by Justice Fletcher Dawson of the Superior Court of Justice.

ENDORSEMENT

[1] This is an appeal from conviction and sentence.

[2] Counsel advances two grounds of appeal on the conviction appeal.

Ground One: The Burden of Proof Instruction

[3] Counsel ably argues that the trial judge’s juxtaposing of a statement of the position of the defence, that the gun was “planted” on him by the police, with the further observation that there was no evidence that the gun came from the car in which the appellant was riding effectively reversed the onus of proof. Counsel submits that this juxtaposing effectively put the burden of proof on the appellant to demonstrate where the gun came from if in fact it had been planted on him by the police.

[4] We cannot accept counsel’s interpretation of the impugned part of the instruction. As counsel acknowledges the charge must be read as a whole. The trial judge thoroughly explained the burden of proof to the jury. That instruction included an impeccable W.D. instruction. The trial judge also set out the position of the defence at various other places in his instruction to the jury.

[5] The trial judge’s observation that there was no evidence that the gun came from the car was made in response to a submission made in closing argument by counsel for the appellant (not counsel on appeal) that the gun could have came from the car. In our view it was proper for the trial judge to tell the jury that a submission advanced by counsel was not supported by the evidence. There was no suggestion that this observation by the trial judge was factually inaccurate.

[6] We also note that the trial judge thoroughly vetted his entire charge to the jury with counsel before delivering that charge. No objection was taken to this part of the instruction.

Ground Two: The Failure to Discharge Juror Six

[7] We need not go into the particular facts underlying this ground of appeal. The trial judge had to decide whether the juror’s non-compliance with his instructions concerning the prohibition against jurors conducting independent investigations demonstrated that this particular juror was not fit to continue on the jury. In making that determination the trial judge had to assess the nature of the jurors misunderstanding of his previous instructions and the juror’s willingness to abide by further instructions. In our view these kinds of assessments are not easily subject to second guessing by an appellate court. We see no error in the manner in which the trial judge exercised his discretion or the basis upon which he determined that this juror could continue.

The Sentence Appeal

[8] We cannot agree with counsel’s submission that the circumstances of this case did not warrant a sentence beyond the minimum of one year. We see no error in principle in the trial judge’s reasons and in the basis upon which he imposed a sentence that was six months above the minimum sentence. Clearly that sentence is not manifestly excessive.

[9] The appeal is dismissed.

Signed: “D.Doherty J.A.”

“John Laskin J.A.”

“J. C. MacPherson J.A.”