CITATION: R. v. Osanyinlusi, 2008 ONCA 805
DATE: 20081128
DOCKET: C46365
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Oluseyi Osanyinlusi
Appellant
Ingrid Grant for the appellant
Nicholas E. Devlin for the respondent
Heard and released orally: November 14, 2008
On appeal from the conviction entered by Justice Silja S. Seppi of the Superior Court of Justice dated September 29, 2006.
ENDORSEMENT
[1] On October 25, 2004, several police officers arrived at the Mississauga home of Gus Papadopoulos to execute a search warrant. Under the warrant, police were seeking several items, including articles of clothing and things used by Clifford Dean Williams in a series of eight robberies that had taken place in Peel Region from early June to late September of that same year.
[2] As police were about to enter or were entering the house, the appellant, who rented a room there, attempted to obstruct their entry. He was apprehended by the officers and handcuffed. An officer noticed an obvious bulge in one of the appellant’s front pants pockets. A search revealed a cell phone and some crack cocaine in individually wrapped pieces. In another pocket, the appellant had a roll of cash.
[3] During the execution of the search warrant, officers entered an upstairs bedroom. In a small unlocked safe sitting in plain view on a chair, they found a set of scales, two clear baggies apparently containing crack cocaine, a set of car keys that fit a motor vehicle in the driveway and an Ohio driver’s licence in the appellant’s name. The car in the driveway, it was acknowledged, belonged to the appellant.
[4] The appellant was charged with possession of cocaine for the purpose of trafficking. A jury convicted him of the offence charged. The trial judge imposed a sentence of two years imprisonment to be served in the community.
[5] The appellant asserts that his conviction is flawed because the trial judge admitted evidence that had been obtained by constitutional infringement and further, that the trial judge failed to properly instruct the jury in one respect critical to the defence position at the trial. We would not give effect to either of the appellant’s complaints.
A. The Evidentiary Rulings
[6] The complaint about the erroneous reception of evidence comes up in this way.
[7] At the outset of trial proceedings, the appellant challenged the validity of the search warrant that the police were executing when they came into contact with the appellant at the front door of the residence to be searched. The complaint was that the information to obtain the warrant (ITO) contained false information about material facts and, had the true facts been disclosed to the issuing justice, the warrant could not have been issued.
[8] The trial judge concluded that the ITO contained two false statements. Those statements related to the likelihood that certain things involved in the robberies would still be at the premises where the search was to be conducted a month after the last robbery, and to the clothing Williams is said to have worn during the robberies. The trial judge concluded that the informant did not intend to present false evidence or to mislead the issuing justice. This finding was open to the trial judge on the evidence before her.
[9] It is worth observation that the informant had two sources of information about the likelihood of items linking Williams to the robberies remaining at the premises to be searched although Williams no longer lived there: Williams and his girlfriend, Kelly Lynn Holmes. While it was wrong to attribute to Williams a statement that certain items remained at the premises to be searched, Holmes provided information that certain items should still be there, and that Williams in fact had been back to the residence during the previous two weeks.
[10] The informant was also in error, as the trial judge found, in attributing to Williams an acknowledgement that he was clad in black clothing during the robberies. Williams denied such a uniform. However, Williams’ denial was contradicted by video surveillance at some of the premises robbed and by information provided to investigators by Holmes and by another person, William Cowell, to whom Williams had spoken about and described the black clothing that he (Williams) had worn during the robberies.
[11] The appellant acknowledges that the trial judge applied the proper standard in determining whether, setting to one side the misleading information, the warrant could nonetheless have been granted. In essence, the complaint reduces to a quarrel with the findings of fact made by the trial judge. According to the appellant, the trial judge should have found deliberate deception and an intention to mislead, rather than an inadvertent error. But the findings made do not reflect any misapprehension of the evidence adduced or the application of any improper principle or other error; rather, they are firmly rooted in the evidence adduced on the s. 8 Charter application. We would not give effect to this ground of appeal.
[12] It follows that the officers who attended the Papadopoulos’ residence were lawfully present in the execution of a valid search warrant, which authorized the search of the entire premises. They were further entitled to detain and search the appellant at the entrance to the premises as a person who appeared to be obstructing the execution of the warrant. No discrete complaint is made about that search and seizure.
B. Jury Instructions
[13] The appellant next says that the trial judge’s final instructions to the jury were flawed in a single respect: the instructions failed to adequately put to the jury the defence position on the effect of the absence of any complaint by the appellant and the homeowner about police misconduct on their credibility as witnesses and the reliability of their evidence.
[14] The appellant and Papadopoulos, the owner of the searched premises, gave evidence about physically abusive conduct by various members of the Peel Regional Police Service during the execution of the search warrant and the arrest of the appellant. Each was cross-examined about his failure to file or otherwise make any complaint to any official about their allegations of police misconduct.
[15] At the pre-charge conference, the appellant’s trial counsel sought an instruction that the absence of complaint was of little or no weight as a factor in the jury’s decision about the credibility of the defence witnesses and the reliability of their evidence. Crown counsel at trial offered a draft instruction to the trial judge. The appellant’s trial counsel responded:
And it’s fine with me, Your Honour. I would like maybe to add something, less legalese and more generic. That’s all. …
[16] In her final instructions, the trial judge said:
In your deliberations you will also need to consider the testimony of Mr. Osanyinlusi and Mr. Papadopoulos about how the events unfolded that day, both of whose evidence is markedly different from that of the officers. Consider the consistencies or inconsistencies in their evidence also in the context of the evidence as a whole.
You should also assess evidence given on cross-examination by the various witnesses. For example, you heard the evidence of missed procedures, of no fingerprints being taken, and the evidence about Detective Andrews’ involvement having not been disclosed during the preliminary inquiry.
As always, when you consider these challenges to the evidence, it is up to you how much or how little weight you give to the evidence in making your decision.
As another example, you also heard the Crown on cross-examination question the evidence of the severe police brutality taking place in the presence of numerous civilian witnesses. Though the evidence that no complaints were made by these witnesses about police brutality is not necessarily proof of the fact that no abuse occurred, the weight that you give to this, or any of the evidence you have heard, is up to you.
[17] In discussing the position of the defence, the trial judge added:
The defence submits that Mr. Osanyinlusi and Mr. Papadopoulos’s evidence of events about police brutality that evening is entirely reasonable in the circumstances of this case where the police power was exerted against them in this overwhelming manner.
She submits no weight should be given to the evidence that they made no police complaints given their circumstances. She challenges the credibility and reliability of the officers’ testimony, and asks you to consider how unlikely it would be that someone would leave crack cocaine in an open safe, and walk out of a house inhabited by known crack cocaine addicts.
[18] In our view, the final instructions adequately apprised the jurors of the relevance of the absence of formal complaint about police misconduct to their assessment of the credibility of the appellant’s and Papadopoulos’s evidence. As the trial judge properly pointed out, it was for the jury to determine the effect, if any, of the absence of complaint on the credibility of the defence witnesses and the reliability of their evidence. And that was the way the trial judge left it with the jury, coupled with a faithful recounting of the defence position on the issue.
[19] The appellant’s trial counsel did not object to the trial judge’s handling of this issue in her final instructions, either in the manner in which the trial judge instructed the jury about the use it could make of the absence of complaint, the position of the defence on the issue, or for a failure to recite the witnesses’ explanation for their failure to complain. We would not give effect to this ground of appeal.
[20] For these reasons, the appeal is dismissed.
“Janet Simmons J.A.”
“E. A. Cronk J.A.”
“David Watt J.A.”