Court of Appeal for Ontario

Date: 2019-06-12 Docket: C65906

Judges: Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Emmanuel Adjei Appellant

Counsel

Andrew Burgess, for the appellant

Caitlin Sharawy, for the respondent

Heard: June 6, 2019

On appeal from the conviction entered on September 12, 2017 by Justice Lauren E. Marshall of the Ontario Court of Justice.

Reasons for Decision

[1] The Charge and Crown's Allegation

The appellant was convicted of forcible confinement. The Crown alleged that the appellant, his brother, and a third man came to the complainant's place of employment, confined him in a car, and drove him around Rexdale in an effort to force the complainant to contact his brother about a debt. The confinement lasted for about an hour and the complainant was not physically harmed.

[2] The Appellant's Statement to Police

The appellant did not testify at trial but gave a statement to police in which he admitted to being in a car with his brother and the complainant, although it is not clear from the statement whether he was the driver or a passenger. He denied that the complainant was threatened and stated that he and his brother only had a friendly chat with the complainant and never left the parking lot.

[3] The Key Issue: Identity and Cross-Examination

The key issue at trial was identity. The Crown alleged the appellant's brother was driving and the appellant was in the front passenger seat. The complainant testified that the appellant's brother, whom he knew, was in the driver's seat. His evidence was that the person sitting in the front passenger seat threatened him, waving an ice scraper in his face. The complainant identified the appellant as the front seat passenger in direct examination. This identification was challenged by the appellant's counsel in cross-examination. After the Crown eventually objected on the basis that the questions about identity were repetitive and the complainant's position clear, the trial judge stated, "At this point, he has resiled from the identification of your client". The appellant's counsel then indicated that he would move on with his questioning.

[4] Trial Judge's Findings

In her reasons for conviction, the trial judge found the complainant to be a truthful witness and accepted his account of what transpired. On the issue of identity, she noted that the complainant first identified the appellant "definitely" as the man in the front passenger seat, but then "later somewhat resiled from that position". She also adverted to the appellant's evidence that he was present in a vehicle with his brother and the complainant. The trial judge rejected as an "outright fabrication" the appellant's statement to the police that he and his brother only had a friendly chat with the complainant.

[5] Sentence and Grounds of Appeal

The appellant was sentenced to 60 days' intermittent custody, followed by 18 months' probation. He appeals his conviction and seeks leave to appeal his sentence.

[6] Grounds of Appeal

On his conviction appeal, the appellant submits that the trial judge erred in: rendering an unreasonable verdict, providing insufficient reasons, and interfering with the cross-examination of the complainant. We do not give effect to any of these grounds of appeal.

[7] Unreasonable Verdict Ground

We are not satisfied that the finding of guilt was unreasonable. The finding was supported by the complainant's testimony, including his qualified identification of the appellant and his identification of the appellant's brother as the driver. The trial judge was entitled to accept the appellant's statement that he was in a car with his brother and the complainant, and reject portions of his statement that she found to be self-serving or fabricated. Her conclusion was also supported by the testimony of a third party who had been present in the car. He admitted to acting as the "muscle" to intimidate the complainant and testified that he was picked up at a location other than the complainant's place of work. The third party put himself in the back seat, as did the complainant. Since the complainant knew the brother and was sure he was in the driver's seat, by necessary implication the appellant was the man in the front seat with the scraper. Thus, the finding of guilt was well grounded in the evidence and open to the trial judge.

[8] Adequacy of Reasons

The reasons given by the trial judge were brief, but they meet the functional test for adequacy of reasons. It is clear that she accepted the evidence of the complainant and rejected much of the appellant's statement to police. Her reasons, read in the context of the record, adequately explain why she convicted the appellant and they permit appellate review. Therefore, we reject the appellant's submission that the reasons were insufficient.

[9] Trial Judge Interference with Cross-Examination

The appellant's complaint about interference with his counsel's cross-examination is not well-founded. Counsel had repeatedly questioned the complainant about who was in the car. When Crown counsel objected, the trial judge pointed out that the complainant had resiled from his earlier testimony that he was certain that the appellant was seated in the front passenger seat. The appellant submits that defence counsel would have continued his cross-examination had the trial judge made the same comment she made in her reasons that the complainant had only "somewhat resiled" from his identification of the appellant. On this basis, he submits that there was wrongful interference with his counsel's cross-examination.

[10] Analysis of Cross-Examination Issue

We do not accept that argument. There was no direction from the trial judge to defence counsel to stop this line of questioning. Indeed, when she commented that the witness had resiled she pointed out that further cross-examination could backfire for the appellant. Defence counsel chose to move on. He did so knowing the state of the evidence. In particular, he knew that the complainant never stated definitively that he could not identify the appellant as the front seat passenger. The trial judge's comment about the complainant resiling from his identification of the appellant must be understood in this context. In these circumstances, there was no interference with defence counsel's cross-examination by the trial judge.

[11] Sentence Appeal: Youth Consideration

With respect to the sentence appeal, the appellant submits that the trial judge erred by failing to consider his youth, resulting in an overemphasis on general denunciation and a lack of consideration of rehabilitation.

[12] Sentence Appeal: Analysis

We disagree. The trial judge identified the relevant mitigating factors, including the appellant's favourable pre-sentence report and lack of criminal record. She also considered the appellant's prospects for rehabilitation as part of her analysis. In our view, the trial judge properly balanced the mitigating factors and the prospects for rehabilitation against the need to demonstrate denunciation for a serious crime. We see no error in that analysis. Nor do we view the sentence as unfit.

[13] Disposition

The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is also dismissed.

"Alexandra Hoy A.C.J.O."

"C.W. Hourigan J.A."

"David M. Paciocco J.A."