Court of Appeal for Ontario

Date: 2017-12-07 Docket: C61068

Judges: Laskin, Pepall JJ.A., and Gans J. (ad hoc)

Between

Her Majesty the Queen Respondent

and

Osamwonyi Enotie Appellant

Counsel

Thomas Arbogast, for the appellant Kevin Rawluk, for the respondent

Heard and released orally: November 29, 2017

On appeal from: the conviction entered on April 19, 2013 and the sentence imposed on June 24, 2013 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted in 2013 of a number of charges arising from five carjackings. He was directly implicated in the last of these carjackings. Specifically he was pursued by police in a stolen vehicle from which he was caught fleeing. He was also charged and convicted on four other carjackings on the basis of similar fact evidence, all of which incidents took place between November 2 and 11, 2010.

[2] There were significant similarities between the carjacking in respect of which he was apprehended and the other four incidents. There was also circumstantial evidence linking him personally to the other carjackings in the form of cell phone localization evidence.

[3] The appellant appeals his conviction on two grounds relating to the trial judge's charge to the jury.

[4] It is his position that the trial judge erred by improperly instructing the jury on how to assess the similar fact evidence. The trial judge further erred by improperly instructing the jury on how to assess group membership in the context of similar fact evidence because:

(a) he did not specifically instruct the jury that it could not employ similar fact evidence to establish Mr. Enotie's membership in the group; and

(b) his instructions stated that the jury could use similar fact evidence to determine membership of the group.

[5] The appellant asks for a new trial.

[6] The trial judge ruled on the Crown's application to permit the introduction of this form of evidence on April 5, 2013, for which he provided full reasons on April 19, the day upon which he also gave his charge to the jury. No appeal is taken from his decision to admit the similar fact evidence. Indeed appellant's counsel concedes that that judgment is unassailable.

[7] It is worth noting that the trial judge conducted pre-charge conferences which ran for almost two days. The charge itself apparently went through eight drafts with defence and Crown counsel signing off on it the night before it was delivered. A review of the transcripts of the pre-charge conferences indicates that the form of charge went through a detailed line-by-line review by both counsel and the court.

[8] Furthermore, following his instructions the trial judge solicited comments from counsel. Although not dispositive of the issue, we note that counsel did not object to any part of the charge, including that which was devoted to the similar fact instruction.

[9] In argument, appellant's counsel directed the court to but very few paragraphs in the charge with which he took exception. The charge itself ran to more than 130 pages.

[10] We have concluded from a plain reading of the ten pages that deal with similar fact evidence, that the charge faithfully follows the two-step process set out by the Supreme Court of Canada in R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228. In our view, the instructions are sufficient to ensure that the jury did not use the group activity to identify the appellant in relation to the group's acts unless he was specifically linked to those acts, namely the four other acts of carjacking.

[11] Reading the charge as a whole, we are satisfied that the jury would not be confused by the instructions so given.

[12] For these reasons, the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.

"John Laskin J.A."

"S.E. Pepall J.A."

"Arthur M. Gans J."