Court of Appeal for Ontario

Date: 2017-08-22 Docket: C61904

Judges: Doherty, LaForme and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Adenike Adeleke Appellant

Counsel

Janani Shanmuganathan, for the appellant

Sarah Shaikh, for the respondent

Heard

August 16, 2017

Appeal Information

On appeal from the conviction entered by Justice Joseph Fragomeni, of the Superior Court of Justice, sitting with a jury, dated February 1, 2016, and on appeal, if leave be granted, from the sentence imposed on April 18, 2016.

Reasons for Decision

[1] The appellant was charged with one count of importing heroin and one count of conspiracy to import heroin. She was acquitted on the importing charge and convicted on the conspiracy charge. The trial judge imposed a sentence of six years.

[2] The appellant appeals, arguing that the acquittal on the importing charge is irreconcilably inconsistent with the conviction on the conspiracy charge. She contends that the conviction on the conspiracy charge is unreasonable and must be quashed.

[3] Alternatively, the appellant argues that the trial judge erred in sentencing her as though she were a party to the importing charge on which she was acquitted. The appellant submits that the trial judge should have sentenced her on the basis that she was a party to a conspiracy to import some unknown amount of heroin. The appellant argues that a sentence of one or two years would be appropriate.

[4] At the end of oral argument, the court advised counsel that the appeal was dismissed with reasons to follow. These are the reasons.

Analysis of Inconsistent Verdicts

[5] In her submissions, counsel for the appellant argued that the appellant's culpability at trial on both counts turned on the same question – did the appellant know that the package contained heroin? Counsel further argues that the resolution of that question as it applied to each count turned on the same evidence. She argues that the different verdicts must reflect some misunderstanding of the legal instructions or an inappropriate compromise by the jury.

[6] R. v. Pittiman, 2006 SCC 9 is the controlling authority. Charron J. said, at para. 7:

The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness's testimony. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge.

[7] We think the verdicts can be reconciled. It was open to the jury on this evidence to be satisfied beyond a reasonable doubt that the appellant was a party to an ongoing conspiracy to import heroin that existed when the heroin shipment arrived in Canada, while at the same time having a doubt as to whether the appellant knew of the arrival of that specific shipment before it entered Canada. If the jury concluded that the appellant learned of the importation only after the drugs were in Canada and in the possession of the co-conspirators, or if the jury had a doubt on that factual issue, the jury would have, on the instructions given by the trial judge, acquitted the appellant on the importing charge and convicted her on the conspiracy charge.

[8] The verdicts are not irreconcilably inconsistent. The conviction on the charge of conspiracy to import is not unreasonable.

Sentencing Analysis

[9] Counsel submits that the trial judge effectively held the appellant responsible for the importation of the amount of heroin referred to in the importing charge for which the appellant was acquitted. She submits that the trial judge was obligated to give effect to the jury's verdict and the facts as clearly found by the jury in arriving at that verdict when imposing sentence.

[10] We are satisfied that on the evidence, even though the appellant was acquitted on the importing charge, the trial judge was entitled to consider the amount of heroin imported in relation to that count as indicative of the nature of the conspiracy to which the appellant was a party. It was open to him to infer that she was a party to a conspiracy to import significant amounts of heroin into Canada. On that view of the evidence, the sentence imposed (six years) was appropriate.

Disposition

[11] The conviction appeal is dismissed. Leave to appeal sentence is granted, and the sentence appeal is dismissed.

"Doherty J.A."

"H.S. LaForme J.A."

"Paul Rouleau J.A."