Court of Appeal for Ontario
Citation: R. v. Opeyemi, 2015 ONCA 41 Date: 20150123 Docket: C56076
Before: Feldman, Simmons and Pardu JJ.A.
Between:
Her Majesty the Queen (Respondent)
and
Olawale Opeyemi (Appellant)
Counsel: 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 kidnapper’s 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 Nana’s friends and associates and demanded a ransom. Nana’s friends contacted police. The police intercepted the telephone communications of the parties to the kidnapping. At the direction of the police, one of Nana’s 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 appellant’s possession with an earpiece connected to the phone in the appellant’s 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 appellant’s 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:
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.
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 appellant’s voice in the courtroom was the voice on the intercepted communications created an appearance of unfairness.
The appellant did not waive his right to have counsel.
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 appellant’s 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 appellant’s 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 appellant’s co-accused were in custody when the appellant’s 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 that’s 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 judge’s 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, 1974 14 (SCC), [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.”