Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241001 DOCKET: COA-23-CR-0841

Rouleau, van Rensburg and Madsen JJ.A.

BETWEEN

His Majesty the King Respondent

and

Chinedu Ajoku Appellant

Counsel: Maija Martin, for the appellant Maria Gaspar, for the respondent

Heard: September 23, 2024

On appeal from the conviction entered on April 24, 2023 by Justice Kenneth L. Campbell of the Superior Court of Justice, with reasons reported at 2023 ONSC 2126.

Reasons for Decision

[1] The appellant abandoned his sentence appeal. After hearing oral argument we dismissed the conviction appeal with reasons to follow. These are our reasons.

[2] The appellant was convicted of possession of approximately one kilogram of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). He was sentenced to eight years in jail. He was acquitted of importing heroin. The charges arose out of a controlled delivery after a mailed package containing heroin had been intercepted at the border. The appellant retrieved the substitute package, which was addressed to a third party, from a UPS location in Scarborough and drove it to his residence in Brampton, where he was arrested shortly after he pulled into his driveway. The package was unopened in the back seat of the vehicle. The sole issue at trial was whether the appellant knew that the package contained heroin.

[3] In convicting the appellant of possession for the purpose of trafficking, the trial judge referred to the following evidence. The appellant expected the package to be delivered to the UPS store, as he had called the owner earlier in the day a number of times to ascertain whether it had been delivered. The appellant lived 57 km away and drove to the store to collect the package after he was told it was delivered. He then drove the package home. The appellant attended at the store after hours and in a hurry, where he retrieved the package which was addressed to an unknown third party. The trial judge inferred from this evidence that the appellant knew that the package contained heroin. He noted that it was unlikely that a package containing that much heroin would be trusted to an unknowing courier. He stated that he viewed “any potential, theoretical, innocent explanation for this compelling body of circumstantial evidence as pure speculation.”

[4] The appellant raised three grounds of appeal. First, he submitted that, in relation to the evidence of Joseph Ajao, the owner of the UPS store, the trial judge erred when he failed to instruct himself in accordance with Vetrovec principles, and in failing to look for independent evidence to corroborate Mr. Ajao’s evidence before accepting it. Although there were significant challenges to Mr. Ajao’s credibility, this is not mentioned in the trial judge’s reasons. As his second, and related, argument the appellant argued that the trial judge failed to provide sufficient reasons for relying on Mr. Ajao’s evidence.

[5] We address these two grounds of appeal together.

[6] A Vetrovec caution is not mandatory in judge-alone trials: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 23-25. The real issue here is whether, to the extent that the trial judge relied on any aspect of Mr. Ajao’s evidence, it was unreasonable for him to do so, considering the challenges to this witness’ credibility.

[7] We agree with the Crown that the trial judge was alive to the challenges to Mr. Ajao’s evidence and the arguments for not accepting his evidence. He pointed to the evidence that he did accept, and after concluding that the Crown had established the appellant’s guilt, he stated, correctly, that he did not have to pass comment on whether Mr. Ajao was, in any way, connected to the commission of the alleged offences. In other words, he recognized Mr. Ajao’s potential involvement in the offence.

[8] Contrary to the appellant’s submission that the trial judge relied heavily on Mr. Ajao’s evidence and that it was central to the appellant’s conviction, the trial judge accepted one aspect of the evidence of this witness: that the appellant had repeatedly called the store to find out if the package had been delivered. In other words, the appellant attended at the store to pick up a package that he was expecting to be delivered that day.

[9] The trial judge did not err in accepting this evidence. Mr. Ajao’s evidence that was accepted by the trial judge was consistent with other compelling and uncontroverted evidence that supported the inference that the appellant attended at the store to pick up a parcel that he had expected: he attended at the store outside business hours, and he entered and exited the store in a very short period of time.

[10] We also reject the assertion that the trial judge’s reasons for accepting parts of Mr. Ajao’s evidence are insufficient. The question is whether the reasons in the context of the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 55. We had no difficulty considering the ground of appeal relating to the trial judge’s acceptance of Mr. Ajao’s evidence. His reasons for convicting the appellant are clear. These reasons include the acceptance of a part of Mr. Ajao’s evidence which was consistent with other compelling evidence.

[11] As his third ground of appeal the appellant contends that the verdict was unreasonable. To accept this ground we must be persuaded that the trial judge’s conclusion that the evidence excluded any reasonable alternative was itself unreasonable. The test is not whether this court would have rendered the same verdict but whether, given the totality of the evidence, the conclusion that the evidence excluded all reasonable alternatives to guilt was reasonable: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 69.

[12] The trial judge explicitly adverted to the need to be persuaded that the appellant had knowledge of the contents of the package that he possessed. The trial judge viewed any “potential, theoretical, innocent explanation” for the compelling body of circumstantial evidence as “pure speculation”.

[13] On appeal, the appellant’s counsel adverted to the argument made at first instance that another reasonable possibility was that the appellant was a private delivery person picking up a package for someone else. We agree with the Crown that it is wrong to examine the evidence in a piecemeal fashion to consider what possible innocent explanation may have existed for each individual piece of evidence: see R. v. Abdelrahman, 2022 ONCA 798, at para. 13. In this case, the evidence as a whole, including the value of the contents, together with fact that the appellant did not testify, amply supported the conclusion that the appellant was knowingly in possession of the package.

[14] For these reasons we dismissed the appeal.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“L. Madsen J.A.”