COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ohenhen, 2015 ONCA 506

DATE: 20150706

DOCKET: C54364

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nosakhare Ohenhen

Appellant

Anthony Moustacalis, for the appellant

Karen Papadopoulos, for the respondent

Heard and released orally: June 30, 2015

On appeal from the conviction entered on June 17, 2010 by Justice Janet Wilson of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of several offences as a result of his interaction with police after a traffic stop. The trial proceeded as a blended voir dire and trial in which counsel litigated first whether the appellant’s rights under ss. 8, 9 and 10 of the Charter had been infringed. The appellant testified on the voir dire. By agreement of counsel at trial, the evidence adduced on the voir dire became evidence at the trial, except for the testimony of the appellant.

[2] The trial judge rejected the evidence of the appellant on the voir dire. In early paragraphs of her reasons, the trial judge said:

[10] I found the version of events given by the defendant to be totally implausible. I conclude that his evidence, where it differs from the evidence of the officers is a fabrication of a story after having had the benefit of hearing all of the evidence in an attempt to exclude the gun and drugs from evidence. PC Tait was the “tallest” officer who the defendant alleges planted drugs on him to justify his decision to search the defendant’s vehicle. PC Tait conducted the pat-down search and located drugs after the arrest of the defendant. Apart from briefly suggesting to PC Tait that he planted the drugs found on Mr. Ohenhen, and a lengthier cross-examination of PC Westell, few of the details contained in the testimony of the defendant were ever put by the defence to the officers in cross-examination.

[12] Similarly, the evidence of Mr. Ohenhen that one of the officers – again presumably PC Tait – before searching his vehicle, said “What do you have in the car? I bet if we searched it I bet we will find a black gun” clearly appears to be a fabrication that seemed to catch even his own counsel by surprise. Notwithstanding this comment, counsel for the defence confirmed, that it was not the theory of the defence that the loaded gun was planted under the back seat of the defendant’s vehicle by one of the officers.

[14] PC Tait assisted in the pat-down search after Mr. Ohenhen’s arrest and located money and a small package containing what appeared to be crack cocaine in Mr. Ohenhen’s pocket. It is PC Tait, the “tallest officer” that Mr. Ohenhen testified waved drugs in the air and made comments about planting drugs on Mr. Ohenhen. PC Tait’s evidence was credible, straight-forward, and makes sense. He was unshaken in cross-examination. He was asked only five questions by defence counsel suggesting that drugs may have been planted to allow the search of the vehicle. Counsel for the defence seemed almost reluctant to ask the questions suggesting the planting of drug. Counsel said, “I’m bound by the rule of law to put these suggestions to you, you can agree or disagree.” I find the suggestion that PC Tait, or any officer, planted drugs on the defendant to justify a warrantless search of the vehicle to be totally unsubstantiated.

[3] In our view, these findings reflect legal error.

[4] Credibility was a significant issue on the voir dire, in light of the disparate versions of events given by the principals. The appellant was entitled to have his credibility fairly assessed without paying an evidentiary price for the exercise of his statutory and constitutional right to be present at his trial. The trial judge’s perception of the reactions of his trial counsel to the evidence adduced are not of evidentiary significance in an assessment of the appellant’s credibility and the reliability of his evidence.

[5] The trial judge found no constitutional infringement, but went on, in any event, to consider whether the application of s. 24(2) of the Charter would result in the admission or exclusion of evidence. We are not persuaded that her s. 24(2) analysis remained untainted by her original findings in connection with the appellant’s credibility. At all events, we are not persuaded that her s. 24(2) analysis overcomes the fundamental flaws in her credibility assessment.

[6] For these reasons, the appeal from conviction is allowed, the convictions set aside and a new trial ordered. We do not reach the sentence appeal that counsel abandoned in oral argument.

“David Watt J.A.”

“David Brown J.A.”

“L.B. Roberts J.A.”