Court of Appeal for Ontario

Date: 2017-10-05 Docket: C62482

Judges: van Rensburg, Pardu and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Oluwaseye Osinfolarin Appellant

Counsel

Oluwaseye Osinfolarin, acting in person

Ian R. Smith, duty counsel

Scott Wheildon, for the respondent

Heard and released orally: October 5, 2017

On appeal from: the conviction entered on April 4, 2016 and the sentence imposed on June 27, 2016 by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Mr. Osinfolarin appeals both conviction and sentence.

[2] He maintains that the jury selection process was flawed because the jurors were not sufficiently representative. We disagree that the selection process was defective. There is nothing to suggest that the assembly of the panel or the challenge for cause process were flawed.

[3] He also maintains that he was prejudiced because the jury did not know that he was in custody during the trial and, therefore, would not have appreciated the difficulties he had in marshalling a defence. Again we disagree. The appellant was represented at trial. His own counsel asked that measures be taken to conceal his custodial status from the jury. This request was acceded to. The appellant testified and had the opportunity to explain any difficulties he may have had in preparing his defence.

[4] The appellant also maintains that the police failed to conduct a proper investigation of the matters raised in his defence. There is nothing in the record to support this ground of appeal.

[5] The appellant received a 13 year custodial sentence less two years and three months credit for pre-sentence custody. This case involves the importation of 1.98 kg of street ready heroin. The appellant argues that his sentence was unduly harsh. Duty counsel argues that the trial judge's reasons were internally inconsistent in describing the range of sentence. Read contextually, we do not agree. The trial judge was clearly aware of the range for importing almost two kg of heroin. He cited the relevant authorities. He took into account both the amount of the drugs and their value. He also had regard to all mitigating factors, including the appellant's background and personal circumstances.

[6] We see no error in the trial judge's determination of sentence. There is no basis upon which to interfere.

[7] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

K. van Rensburg J.A.

G. Pardu J.A.

Fairburn J.A.