Court of Appeal for Ontario

Date: 2022-11-18 Docket: C68000

Judges: Fairburn A.C.J.O., Huscroft and Coroza JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

Tamba Gbamanja Junior Appellant

Counsel

Hilary Dudding, for the appellant Brigid Luke and Christa Reccord, for the respondent

Heard: November 16, 2022

On appeal from the conviction entered on August 2, 2019, by Justice John P. Condon of the Ontario Court of Justice sitting without a jury.

Reasons for Decision

[1] At the conclusion of the oral hearing of the appeal, we dismissed the appeal with reasons to follow. We now provide those reasons.

[2] After trial, the appellant was convicted of two charges under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), namely aiding or abetting persons to possess a passport in order to contravene the IRPA and aiding or abetting persons to enter into Canada in contravention of the IRPA.

[3] On April 15, 2017, the appellant drove a car with three other people to the International Bridge border crossing in Sault Ste. Marie, Ontario from the United States of America. At the primary inspection booth, the appellant provided the border services officer (“BSO”) four Canadian passports. When the four passports were scanned by the computer system, two “lookouts” or notifications of concern were raised. The appellant was then questioned by the BSO and stated that the group was from Toronto, worked in the Sault Ste. Marie area, and had been in the United States for a few hours. The car was referred to a secondary inspection point because the passports were the subject of “lookouts”.

[4] At the secondary inspection point, the appellant and other individuals were detained because the BSOs doubted the validity of the information being provided by the passengers after their brief questioning and because the passengers did not resemble the photographs in the Canadian passports.

[5] The car was searched. Nigerian passports were found in a vent under a backseat. United States entry visas corresponding to the names found in the Nigerian passports were also located. One of the officers compared the Nigerian passports to the detained individuals and formed the opinion that the individuals resembled the photos in those passports.

[6] The appellant raises several issues on appeal.

[7] The primary argument advanced by the appellant is that the trial judge erred in admitting and relying on identification opinion evidence from the BSOs that the individuals did not match the photographs in the Canadian passports, but matched the Nigerian passports. The appellant submits that a voir dire should have been held regarding the admissibility of this evidence. We do not accept this submission.

[8] First, we note the argument advanced by the appellant at trial focused exclusively on the frailties of the BSO’s observations, not the admissibility of those observations. Therefore, this argument is being raised for the first time on appeal. Doing so raises several concerns, not the least of which are concerns over finality: R v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40.

[9] In any event, on the basis of the record we have before us, we are not persuaded that a voir dire was required. In our view, this evidence was admissible as lay opinion eyewitness identification evidence. While some of the evidence was not typical eyewitness identification evidence, in the sense that the BSOs testified that the individuals were not those depicted in the Canadian passports, the evidence was a first-hand account of witnesses who made observations at the time the offences were committed. These direct observations were not fleeting, and the trial judge had copies of both Canadian and Nigerian passports to assist him in assessing the evidence from the witnesses. It was for the trial judge to consider any frailties in the identification.

[10] The cases relied on by the appellant are dissimilar to this case. Those cases deal with witnesses who had a “prior acquaintance” with the individual being identified. In contrast, the witnesses in this case had never before met the individuals who purported to be those reflected in the Canadian passports, but were not.

[11] Second, the appellant asserts that the trial judge materially misapprehended evidence that was central to the appellant’s conviction. In his reasons, the trial judge summarized and relied on the evidence of BSO Haché. Among other things, the trial judge said that BSO Haché testified that the photos on the Nigerian passports matched the detained individuals. The Crown concedes that the trial judge was mistaken, but only to the extent of who provided that evidence. It was not BSO Haché. Rather, it was BSO Gordon. Having reviewed the transcript, we agree with this concession.

[12] In our view, the trial judge’s error does not rise to the level of a misapprehension of evidence that would warrant appellate intervention. The trial judge did not make a mistake about the substance of the evidence or fail to give proper effect to the evidence. He simply attributed the evidence that he comprehensively summarized in his reasons to the wrong witness. This was an error in narration and not an error that went to the reasoning process of the trial judge. We also note that in other parts of his reasons, the trial judge correctly noted that BSO Gordon testified that the Nigerian passports found in the car identified the detained individuals.

[13] Finally, the appellant argues that the verdict is unreasonable. We do not accept this submission. To succeed on this ground of appeal, the appellant must establish that, based on the entirety of the evidence, no properly instructed jury, acting judicially, could reasonably have found that the appellant’s guilt had been established: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 30.

[14] In our view, the body of circumstantial evidence supporting guilt, which included the Nigerian passports and other items found in the car was overwhelming and readily surpasses the unreasonable verdict threshold.

[15] For these reasons, the appeal is dismissed.

“Fairburn A.C.J.O.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”