COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Iyeke, 2016 ONCA 349

DATE: 20160510

DOCKET: C59076

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Iyeke

Appellant

Andrew Furgiuele, for the appellant

John A. Neander, for the respondent

Heard: May 3, 2016

On appeal from the convictions entered on November 28, 2013 and the sentence imposed on January 17, 2014 by Justice Michael G. Quigley of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant was convicted of several drug and firearm offences by a jury. He appeals his convictions on three counts relating to the possession of a prohibited firearm and two counts of breach of a firearm prohibition order. He does not appeal his convictions on two counts of possession of cocaine for the purpose of trafficking and one count of possession of the proceeds of crime.

[2] The police received information from a confidential informant that the appellant trafficked in cocaine and was in possession of a gun. The confidential informant provided police with details about the appellant, including the address of his apartment and the kind of car he drove. The police conducted surveillance to corroborate some of the information the confidential informant had provided. They saw him engaged in what appeared to be hand-to-hand drug transactions. The police obtained a search warrant to search the appellant’s car and his apartment. The police stopped the appellant in his car and arrested him. They found cocaine in the car. Later that day they executed a search warrant at his one-bedroom apartment and discovered a large quantity of cocaine, several thousand dollars and a loaded prohibited handgun.

[3] The appellant testified at trial and admitted that the drugs found in his car and bedroom belonged to him. He however denied that the gun was his. He called evidence that others had access to the apartment. The jury rejected his evidence and he was convicted.

[4] On appeal, the appellant submits that Crown counsel impermissibly urged the jury to reject his testimony by relying on the confidential informant’s hearsay statement that the appellant possessed a gun for the truth of its contents. The Crown counsel did this even though the informant’s hearsay statement was not in evidence. The appellant further submits that the trial judge magnified the prejudice by repeating the Crown’s submission that the confidential informant had told the police the appellant had a gun and then went on to instruct the jury it could consider the statement as part of the evidence when determining the case.

[5] The Crown submits that, understood in the context of the case, Crown counsel’s reference in her closing address to the informant’s statement did not result in any unfairness to the appellant. The Crown points out that defence counsel at trial did not object to the Crown’s closing or request the trial judge to give a limiting instruction. Therefore the appellant should be precluded from raising this ground on appeal.

[6] At trial, the police officer who testified that the police had received information from a confidential informant did not attribute the police knowledge of the gun to the confidential informant. He said the police had received a confidential tip and had “other information”. This testimony was admissible as a narrative to explain the actions taken by the police.

[7] Crown counsel in her closing address told the jury that the informant had told the police that the appellant was in possession of a gun and they should consider this fact. This was no casual passing reference but, rather, the centrepiece of the Crown’s closing address. She repeatedly linked the information about the presence of the gun to the confidential informant. She also invited the jury to consider whether it was reasonable that the gun belonged to somebody else given the fact that the confidential source had told the police that the appellant was in possession of a gun.

[8] The trial judge also misstated the police officer’s testimony. He, too, told the jury that the confidential informant had told the police the appellant had a gun at the apartment. Then, in summarizing the Crown’s position, the trial judge repeated the Crown’s rhetorical question: “Is it reasonable that the gun belonged to someone else given that a confidential source had told the police that [the appellant] was in possession of a gun?”

[9] We see no plausible tactical reason to explain the trial counsel’s failure to object and seek an instruction correcting the misinformation and directing the jury it could not use the informant’s tip for the truth of its contents. In any event, the jury charge is ultimately the responsibility of the trial judge, not defence counsel.

[10] Crown counsel’s mistaken and improper closing address, left uncorrected, rendered the trial unfair. This is a not a case for the application of the proviso. It is for a jury to assess the credibility of the appellant’s testimony the gun was not his.

[11] The appeal is allowed. The firearms and breach of the firearm prohibition order convictions are vacated and those charges are remitted to the Superior Court of Justice for a new trial.

[12] It is necessary to clarify the sentencing order. The trial judge, applying the totality principle, reduced the total sentence imposed by one year. The appellant concedes that the reduction in total sentence for totality falls away when the firearms and breach of prohibition order convictions are quashed. However, he submits, and the Crown agrees, that the credit he received for presentence custody should remain. The appellant received two concurrent three-year sentences for the cocaine offences and a concurrent one-year sentence for possession of proceeds of crime. He received 27 months’ credit for presentence custody. The result is that his effective sentence is nine months.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“David Watt J.A.”