



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olufeko, 2022 ONCA 308

DATE: 20220419

DOCKET: C66026 & C66759

van Rensburg, Nordheimer and
    George JJ.A.

Docket:
C66026

BETWEEN

Her Majesty the Queen

Respondent

and

Saidi Sanni Olufeko

Appellant

Docket:
    C66759

AND BETWEEN

Her Majesty the Queen

Respondent

and

Tajudeen Fanikayode

Appellant

Angela Ruffo and Joanne Collins, for
    the appellant Saidi Sanni Olufeko

Jeffery Couse, for the appellant
    Tajudeen Fanikayode

James Clark, for the respondent

Heard: February 3, 2022, by
    video conference

On appeal from the convictions entered
    on January 11, 2018, and the sentence imposed on March 27, 2018, by Justice E. Ria
    Tzimas of the Superior Court of Justice, sitting with a jury, with reasons for sentence
    reported at 2018 ONSC 2010.

George J.A.:

overview

[1]

On June 14, 2014, Canada Border Services Agency
    officers intercepted a shipment at Pearson International Airport. The shipment
    contained carpets, some of which had heroin secreted inside. All told, approximately
    eight kilograms of heroin was seized. Once officers from the Royal Canadian
    Mounted Police (RCMP) became involved, a general warrant to carry out a
    controlled delivery of the shipment was obtained, as well as wiretap
    authorizations for two phone numbers.

[2]

The appellants  Saidi Olufeko (Olufeko) and
    Tajudeen Fanikayode (Fanikayode)  together with co-accused Akeem Onaola
    (Onaola) and Peter Ajiri (Ajiri) were charged with importation of heroin,
    conspiracy to import heroin, possession of heroin for the purpose of
    trafficking, and conspiracy to possess heroin for the purpose of trafficking.

[3]

Onaola pleaded guilty to importation and
    possession for the purpose of trafficking. The other three accused proceeded to
    trial, where Ajiri was acquitted. Olufeko was found guilty on all counts.
    Fanikayode was found guilty of conspiracy to possess heroin for the purpose of
    trafficking and possession for the purpose of trafficking. Both appeal against
    their convictions. Olufeko also appeals against his sentence, which was 16
    years in the penitentiary reduced by the time spent in pre-trial custody.

[4]

The appellants advance various grounds of
    appeal. Olufeko argues that the trial judge,

i)

erred in allowing the Crown to elicit a police
    officers in-court identification, or, alternatively, by failing to provide a
    strong accompanying caution;

ii)

failed to give an adequate
W.(D.)
[1]
instruction in relation to exculpatory evidence;

iii)

improperly criticized his counsels closing to
    the jury; and

iv)

in respect of sentence, erred in finding that
    there were no mitigating factors, which led to the disparate treatment of
    immigration consequences as between himself and Fanikayode, who received a
    12-year sentence.

[5]

Fanikayode argues,

i)

that the trial judge delivered an unbalanced
    jury charge, which favoured Ajiri and deprived him of a fair trial;

ii)

that the trial judge improperly admitted opinion evidence on
    counter-surveillance techniques, or, in the alternative, erred by not providing
    a limiting instruction about its use; and

iii)

that the verdict is unreasonable.

evidence at trial

[6]

Onaola testified on behalf of the defence. He said
    that he was the only one of the four involved in the importation scheme and
    that Olufeko, Fanikayode, and Ajiri knew nothing about it.

[7]

He advised that in 2004, while working in New
    York City, he became acquainted with a man named Joseph Goldstein. He testified
    that Mr. Goldstein hired him to ship carpets from Pakistan to Toronto on his
    behalf. Onaola testified that, in January 2014, he agreed to ship carpets that
    contained heroin to Canada. To that end, a fake company (with a Hamilton
    address) was set up and listed as the consignee. Onaola advised that, in
    addition to a $50,000 payment, he was told he could take possession of some of
    the carpets to do with as he wished. In respect of this shipment, it was his
    understanding that heroin would be concealed in three of the carpets and that
    the others would be his. Onaola testified that he was going to gift one of these
    extra carpets to each of his friends Fanikayode and Olufeko, and to Olufekos
    friend, Ajiri.

[8]

The intercepts obtained through the wiretap
    authorization do not capture anything from either Olufeko or Fanikayode. They
    do, however, capture Onaola impersonating Mr. Goldstein attempting to
    coordinate the shipment on a device seized from Onaola upon his arrest. Onaola
    explained that this phone was given to him by Mr. Goldstein.

[9]

As it relates to the movement of the carpets
    from the airport to its final destination (a Public Storage facility), the
    evidence at trial revealed that,

i)

the Hamilton consignee business that Onaola
    spoke of, did not exist;

ii)

at the Public Storage facility, Onaola had
    rented locker A016 under the name Dave Brewer; and

iii)

RCMP officers, with assistance from the Toronto
    Police Service, set up surveillance at both the airport and Public Storage
    facility.

[10]

According to officer testimony, their
    surveillance yielded these results:

i)

At about 1:30 p.m. on June 19, 2014,
    Fanikayodes Chrysler 300 vehicle was observed in the storage facilitys
    parking lot. Of note, Fanikayode and Onaola both testified that Onaola had
    directed Fanikayode to meet him there so that he could give him a carpet.

ii)

Fanikayode drove around the parking lot  presumably looking for
    Onaola  for approximately 10 minutes, before departing.

iii)

During the time Fanikayode is seen driving on
    the storage facilitys premises, phone records show a 10 second call to
    Olufeko.

iv)

After departing the storage facility, Fanikayode
    attended at a Costco across the street.

v)

Shortly after Fanikayodes departure, a cargo
    truck arrived at the airport to retrieve the carpets.

vi)

Police observed Onaola follow this truck in a
    silver Honda sedan. The cargo truck arrived at the storage facility around 3:20
    p.m.

vii)

Fanikayode and Onaola parked near one another in
    the Costco lot, both facing the Public Storage area.

viii)

Onaola walked to the storage facility, allowed the cargo truck
    driver into the secured area, and unloaded the carpets into his rented unit. At
    the same time, Fanikayode was walking in the Costco lot speaking on his phone.
    During this time  2:14 p.m. to 4:35 p.m.  Fanikayodes phone records show
    that he received and/or made 23 calls, including two with Onaola and 7 with
    Olufeko.

[11]

Toronto Police Constable Doug McCutcheon
    testified that, at around 4:33 p.m. on the 19th, he observed a black male in
    his 30s, wearing a teal-coloured t-shirt and sunglasses, in the Costco parking
    lot speaking on his phone and looking into other parked vehicles. Officer
    McCutcheon said that this man initially came from the Costco Gas Bar. He took
    photographs of this person, which were filed at trial. At some point he lost
    sight of him. The officer said that he had him under observation for about 20
    minutes. While the officer had not been able to identify this man as Olufeko
    before, he did so at trial upon being presented with the photographs. When
    Fanikayode was shown the same photographs, he denied that they were of Olufeko.
    Fanikayode further testified that he had not seen Olufeko in the parking lot at
    all that day.

[12]

Surveillance continued on June 20th. According
    to Fanikayode, he was to meet with Onaola to get his carpet. Onaola did not
    show. Onaola testified that they spoke to each other twice that afternoon and
    that Fanikayode was quite angry over the missed meeting. Later, at some point
    between 4:40 p.m. and 4:48 p.m., Olufeko attended at the storage area. He was
    observed by the facilitys manager attempting to open the gate. As Olufeko did
    not have a code he could not gain access on his own, but he followed, on foot,
    another vehicle that could gain access. A short while later, the alarm to
    Onaolas locker was triggered. The facility manager testified that if a unit is
    accessed without the alarm being disabled, it will go off.

[13]

At this time, an RCMP officer was inside another
    locker nearby. She testified that she received a radio transmission at 4:47 p.m.
    alerting her to the fact that a man was approaching. She did not observe that
    man attend inside of, or touch anything in, the locker. At about 4:50 p.m.,
    Olufeko left the storage area and returned to his car, which was parked at the
    Costco lot across the road. Phone records show that the device later seized
    from his vehicle had made (or received) six short calls with Onaola, the last
    one being at 5:24 p.m. and lasting for 15 seconds.

[14]

Onaola, along with Ajiri, arrived at the storage
    facility around 5:10 p.m. Onaola had a keypad code and was able to enter the
    secured area and the unit. Both Onaola and Ajiri went inside, retrieved two
    carpets, and began to load them into their car. At 5:26 p.m.  a mere two
    minutes after the call between Onaola and Olufeko (who had just been where
    Onaola then was)  Onaola returned the carpets he had just retrieved back to
    the locker. Onaola and Ajiri were then arrested.

[15]

At 5:31 p.m., while in his vehicle at the Costco
    parking lot, Olufeko was arrested. In his glove compartment police located and
    seized a cheque, a recent visitor parking permit for Fanikayodes address, the
    vehicle registration, and a Blackberry. In the passenger side door, the police
    found documents connected to the carpet shipment, including a printed email
    from supcan@yahoo.com to solufeko@yahoo.com, an Etihad Airways Bill number
    60710966690, and a handwritten note.

[16]

In his police statement, Olufeko denied that
    these documents were his. He indicated that Onaola asked him to print off the
    email because his printer was not working. When officers searched the address
    on Olufekos drivers licence, they located personal items belonging to both
    Olufeko and Fanikayode.

[17]

As mentioned, Onaola testified on behalf of the
    defence. He acknowledged being a part of the importation scheme, at the behest
    of Mr. Goldstein, but denied that the other accused were. To the extent any of
    Ajiri, Olufeko, and Fanikayode were involved, they were to simply be given a
    carpet as a gift. Ajiri and Fanikayode both testified.  Fanikayodes testimony
    closely aligned with Onaolas. Olufeko did not testify but the Crown introduced
    his police statement for the truth of its contents. In it, Olufeko denied
    knowing anything about the drugs or Mr. Goldstein. When confronted with the
    shipment documents located in his car, he said they were not his. He
    acknowledged that solufeko@yahoo.com was his email address. When asked about
    his attendance at the storage facility, he said that he was just looking for
    Ajiri.

issues

[18]

On this appeal, these issues arise:

i)

Did the trial judge err in allowing the Crown to
    elicit Officer McCutcheons in-court identification of Olufeko, or,
    alternatively, by failing to provide a strong caution about its use?

ii)

Did the trial judge fail to give an adequate
W.(D.)
instruction?

iii)

Did the trial judge improperly criticize the closing address by
    Olufekos counsel?

iv)

In relation to Olufekos sentence, did the trial judge err by
    finding that there were no mitigating factors and, as a consequence, did she treat
    Olufeko and Fanikayode differently? In other words, did she fail to consider
    and apply the parity principle?

v)

Did the trial judge deliver an unbalanced jury charge, which
    favoured Ajiri and deprived Fanikayode of a fair trial?

vi)

Did the trial judge improperly admit opinion evidence on
    counter-surveillance techniques, or err by failing to provide a limiting
    instruction about its use?

vii)

As it relates to Fanikayode, was the verdict unreasonable?

[19]

I will address each in turn.

discussion

Did the trial judge err by
    allowing the Crown to elicit Officer McCutcheons in-court identification of
    Olufeko, or, alternatively, by failing to provide a strong caution about its
    use?

[20]

The concerns that typically arise when you have
    an in-dock identification  which will almost always attract at least a strong
    caution, if not be excluded altogether  do not arise here. To start, the
    photographs that Officer McCutcheon was asked to review were filed as exhibits
    and in the hands of the jury during their deliberations. Jurors were specifically
    told to review the photographs and determine for themselves whether Olufeko is
    the person captured in them. This situation is markedly different than a
    witness simply pointing at an accused in court and saying, it was them, which
    is inherently unreliable especially when the witness and accused are otherwise
    strangers. Here, the jury was told to consider whether the photographs were of
    sufficient clarity and quality to identify the appellant beyond a reasonable
    doubt. This instruction was in accordance with the principles set out in
R.
    v. Nikolovski
, [1996] 3 S.C.R. 1197, and went far beyond what was required
    in the circumstances of this case. It was also to Olufekos advantage. A
Nikolovski
instruction is provided in cases where photographic identification stands
    alone, which was not the case here, but, with counsels approval, was given
    nonetheless.

[21]

Remember that the purpose in cautioning a jury
    in circumstances like these is to prevent wrongful convictions, made necessary
    by the fact that witnesses often get it wrong. Sometimes they misidentify
    people with no malice, genuinely and confidently believing they are correct.
    Sometimes they lie. Regardless of a witnesss motivation, in-dock
    identification, and eyewitness evidence generally, must be treated with skepticism.
    As indicated, no such concerns arise here, as the jury did not have to rely
    solely on what someone else said. Each juror could assess it for themselves,
    and the trial judge directed them to do just that.

[22]

Moreover, Olufekos counsel did not object to
    this line of questioning, and, while that is not always determinative, in this
    case it was clearly a tactical decision made to preserve his clients right to
    pursue a similar line with other witnesses in order to impeach them. What I
    mean is, Olufekos counsel advanced the position that police officer
    identification was not credible and by not objecting to the admission of this
    evidence he was maintaining the ability to attack it as such. This comes into
    sharp focus at the pre-charge conference when Olufekos counsel not only declined
    to seek a limiting instruction but approved of the trial judges decision to
    provide the
Nikolovski
instruction, which removes any possibility that
    the lack of objection was merely an oversight. This was Olufeko getting the
    very instruction he wanted and which, despite the ultimate result, was to his benefit.

[23]

I would reject this ground of appeal.

Did the trial judge fail to give
an
adequate W.(D.) instruction?

[24]

Olufeko contends that the trial judge erred in
    her instruction about exculpatory evidence.

[25]

To focus solely on the text of the
W.(D.)
instruction provided, one could conclude that this ground has some merit, as the
    trial judge does seem to relate it only to the testimony of Onaola, Ajiri and
    Fanikayode, and not Olufekos police statement. While the heading of this
    section in the written jury charge included Olufeko, and while the trial judge
    did say that this instruction applies to all three accused, Olufeko argues
    that the trial judge fell into error nonetheless by framing
W.(D.)
as
    a special rule that applies either when an accused chooses to testify or
    when a witness is called by the defence. In other words, this aspect of the
    trial judges charge likely led the jury to exclude Olufekos statement from
    the
W.(D.)
analysis.

[26]

That said, the trial judge did go on to address
    Olufekos statement, instructing the jury as follows:

You can consider what Mr. Olufeko said [to
    police] about his activities, his involvement, or his reasons for being at
    Costco as that relates to your consideration of Mr. Olufekos innocence or
    guilt. You cannot, however, use Mr. Olufekos evidence to draw conclusions
    about the innocence or guilt of Mr. Ajiri, or Mr. Fanikayode.

[27]

This is somewhat problematic, not only because
    it sets Olufekos statement apart from the testimony of the other accused, but
    in the way it distills the analysis down to a question of guilt versus
    innocence, and not whether the statement, even if disbelieved, could raise a
    reasonable doubt.

[28]

However, despite any concerns, this was, in the
    circumstances, an adequate instruction. I point out that Olufekos counsel
    raised no objection, which, while not in itself determinative, is yet another
    example of a tactical decision. I say that because to draw any more attention
    to his statement, Olufeko would have then undermined the defence he raised at
    trial, which was that he had not taken Ajiri to the Public Storage area, when
    in his statement he said he had.

[29]

However, apart from any tactical decision, remember
    that one of the purposes of a
W.(D.)
instruction is to convey to the
    jury that a reasonable doubt applies even when exculpatory evidence is not
    believed. And here, while not perfectly done, the charge, read as a whole,
    sufficiently explains the burden of proof; who has it; and relates exculpatory
    evidence to the reasonable doubt standard. Consider this passage from the
    charge which, when read together with the just mentioned passages, achieves
    that objective:

Unless you are satisfied that the accused did
    not make the statements that are attributed to himyou must consider those
    remarks that may help an accused along with all of the other evidence. If you
    decide that an accused made a statement that may help him in his defence, or if
    you cannot decide whether he made it, you will consider that statement along with
    the rest of the evidence in deciding whether you have a reasonable doubt about
    the accused guilt.

[30]

For these reasons, I would reject this ground of
    appeal.

Did the trial judge
improperly
criticize the closing address by Olufekos counsel?

[31]

This complaint arises from the trial judges
    comments to the jury about the closing address of Olufekos counsel. Olufeko
    submits that what the trial judge said was unfair, denigrated his case, and
    compromised his right to a fair trial.

[32]

After repeating various aspects of the closing,
    this is what the trial judge said:

Before I turn to the Crowns closing
    submissions, I want to make some observations with respect to this closing.
    When you consider this closing, I make the following observations: I remind you
    that it is for you to decide how Mr. Ajiri got to Public Storage. You have
    heard three versions of this, you heard Peter Ajiri say that he went there with
    Mr. Olufeko. You heard Mr. Onaola say that he brought Mr. Ajiri there, then you
    have Mr. Olufekos statement. I ask that you review that statement very
    carefully. When you go through it, you will see an evolution in Mr. Olufekos
    explanation. Initially, he says he went to Costco on his own. Then he says he
    went to a friends at 11:30 a.m., had breakfast, watched a movie, and then his
    friend asked him to drive him to Lakeshore to meet another friend. He was going
    to buy something. That friend was Peter. Then, at a later part of the
    statement, Mr. Olufeko tells you that he did not meet anyone at Costco. It will
    be for you to decide what you believe and what you take from Mr. Olufekos
    statement. And I remind you, again, that the statement pertains, you can use
    that statement in relation to Mr., your findings on Mr. Olufeko. Insofar as
    counsel raised questions about Mr. Ajiris credibility to provide a full answer
    and defence on Mr. Olufekos behalf, those submissions should be treated with
    great care. Did Mr. Olufeko bring Mr. Ajiri to Costco, and did Mr. Olufeko give
    Mr. Ajiri scissors, and the orange card? These are questions about which you
    make the findings of fact. Insofar as the closing submissions went beyond to
    question the credibility and sought to implicate Mr. Ajiri, I remind you that
    it is only the Crown that is prosecuting the case against each of the accused.
    Any personal opinions about anyones guilt by any of the counsel is to be
    disregarded.

[33]

In this instance, an objection was raised.
    Olufekos trial counsel said this:

In my closing I put Mr. Olufekos best foot
    forward and that did not align with the evidence of Mr. Ajiri. Mr. Ajiri hit
    the stand and implicated Mr. Olufeko, not the reverse. Counsel for Mr. Ajiri
    knowingly and with purpose advanced the narrative against Mr. Olufeko, opening
    up the door to cutthroat defences.

[34]

This objection highlights the dilemma Olufeko
    found himself in, which I addressed earlier in these reasons. Also, as
    mentioned, the position Olufeko was attempting to advance at trial was at odds
    with what he had said in his police statement. The trial judge was aware of
    this and chose to intervene. She was right to do so, not just because of the
    inconsistency and risk that the jury would be misled, but because Onaola  an  unsavoury
    witness  had given evidence that undermined Ajiris testimony, which was
    problematic given the cut-throat defence being advanced and the Crowns
    position, which at that point in the trial, was to suggest that Ajiri should be
    believed. What that means is, without the trial judges intervention, it was
    Ajiris right to a fair trial that was placed at risk. In any case, at the end
    of the day, the trial judge was better positioned than I am now to assess the
    dynamics of the case, what interventions were required, and their timing. Here,
    it was reasonably determined that an instruction was required to avoid
    prejudice to Ajiri.

[35]

Again, Onaola was an unsavoury witness. As such,
    the trial judge committed no error when she urged the jury to treat his
    evidence with caution. This was appropriate in the circumstances. Furthermore,
    instructing the jury to be especially cautious or extremely careful in
    considering defence evidence [does not constitute] an error of law, especially
    where that instruction is accompanied by an instruction that accords with [
W.(D).
]:
R. v. Wristen
(1999)
, 47
    O.R. (3d) 66 (C.A.), at para. 45, leave to appeal refused, [2000] S.C.C.A. No.
    419. When such a caution is provided, the question then becomes whether the
    charge, considered as a whole, unfairly undermine[d] the defence position:
Wristen
,
    at para. 45. This charge did no such thing.

[36]

I would, therefore, reject this ground of appeal.

Olufekos
Sentence
Appeal

[37]

I see no error in either the imposition of a
    16-year sentence or in the analysis that led to it. To start, the sentence is
    in the range of what Olufekos counsel sought, which was 15 to 16 years. 16
    years is otherwise a fit sentence, given the nature of the substance, its
    quantity, and the role Olufeko played in the importation scheme.

[38]

As for immigration consequences, it may well be
    that Olufeko and Fanikayode were treated differently  because each did face
    the prospect of deportation  but in the circumstances of this case it was of
    no consequence. Olufeko received the sentence he sought, and the difference in
    their respective sentences is explained by Olufeko being convicted of
    importation, which is more serious and carries a higher degree of moral culpability
    than possessing the same substance for the purpose of trafficking, which is
    what Fanikayode was found guilty of doing. That being the case, parity as
    between Olufeko and Fanikayode would not have been appropriate.

Did the trial
judge
deliver
    an unbalanced jury charge, which favoured Ajiri and deprived Fanikayode of a
    fair trial?

[39]

A jury charge does not need to be perfect, but
    it does need to be fair:
R. v. Baltovich
(2004), 73 O.R. (3d) 481
    (C.A.), at paras. 114-18. As the charge was fair, this ground of appeal must
    fail.

[40]

For Fanikayode, the problem lies in the trial
    judge telling the jury to be very cautious about Onaolas testimony, in
    particular his description of the nature and extent of his engagement with the
    three accused. The trial judge went on to tell the jury that they should
    approach [their] findings of fact with particular care and caution, because it
    is possible that Mr. Onaola may have been more concerned to distance Mr.
    Olufeko, and to implicate Mr. Ajiri.

[41]

Earlier in these reasons, when discussing
    Olufekos contention that Ajiris interests were protected (at his expense), I
    alluded to the Crown shifting its position in respect of Ajiri as the trial
    came to a close. What I failed to mention, but is critical when assessing this
    ground of appeal, is the Crown ultimately withdrew the conspiracy count as
    against Ajiri. This happened before the case was placed in the jurys hands,
    and each juror would have been aware of this development. Given the change in
    position  which had to have emanated from the Crowns acceptance of much of
    Ajiris testimony  it was incumbent on the trial judge to weigh in so as to protect
    Ajiris fair trial interests.

[42]

Doing this did not, however, create an
    unfairness for Fanikayode. Consider what the trial judge said about the Crowns
    change in position and submissions concerning Ajiri:

[The Crown] has told you that he is not sure
    of Mr. Ajiris level of involvement. He has left the questions concerning Mr.
    Ajiris knowledge and level of control up to you. It is significant that he has
    asked you to rely on Mr. Ajiris evidence to make findings against Mr. Olufeko
    and Mr. Fanikayode. If the Crown is asking you to find Mr. Ajiri credible on a
    number of aspects of this case, I ask you, does it make sense to you that he
    would, Mr. Ajiri would not be credible on his exchange with the police.
    Did he know more than he let on, as [the?] Crown suggested, or did he not know?
    You have to consider those questions very carefully, and they are your findings
    to make.

[43]

The trial judge had to say something about this given
    the Crowns changed position. There was no basis to say something similar about
    Fanikayode, which does not give rise to an unfairness but is, rather, a reality
    of a case where the evidence against each accused, and their respective
    positions, was different. The trial judge was best positioned to gauge what was
    required and to strike the right balance. I see no reason for this court to
    interfere and would, therefore, reject this ground of appeal.

Did the trial judge err by improperly
    admitting opinion evidence on counter-surveillance techniques or by failing to
    provide a limiting instruction about its use?

[44]

I begin this issue by saying that I do not
    necessarily accept the characterization of the evidence as opinion evidence. It
    appears to me to be narrative evidence of the officers observations. However,
    assuming that it is opinion evidence, I point out, again, that there was no
    objection from trial counsel with respect to the officer being asked about, and
    giving, this evidence. This is yet another example of an appellant raising
    issues that were not raised by trial counsel. While it is ultimately the trial judges
    responsibility to ensure only admissible evidence is presented to the jury and
    that the proceeding is fair, at the same time, trial judges inevitably, and
    quite properly, look to trial counsel for assistance and reasonably expect to
    receive it. At one point, appellant counsel suggested that because this was a
    lengthy, complex trial, with several accused and counsel, it could be that
    counsel just got tired as it neared its conclusion, as a way to explain the
    lack of diligence by trial counsel as a mere oversight. I do not accept that.
    If anything, the nature of the proceeding would have elevated counsels level
    of awareness and the need to preserve the record so that contentious issues
    could be properly addressed on appeal.

[45]

In any case, I do not believe the trial judge
    fell into error. I start by pointing out that police opinion about
    counter-surveillance techniques was first raised by Fanikayode. Consider this
    exchange between Fanikayodes counsel and Officer Willschick:

Q. Okay, so, when you guys went out, your team
    went out, would it be fair to say that your mandate was to look for any
    suspicious activity with regard to this controlled delivery?

A. Yes.

Q. Okay. And you said that you were nominated
    the scribe for the surveillance report on the 19
th
?

A. Correct.

Q. Thats probably because of your handwriting
    because I have no trouble reading it. And so, your job essentially was to take
    down anything that wouldve been suspicious that was reported on the radio, is
    that correct?

A. Yeah, when another member would make an
    observation, I was to write it down.



Q. [If] someone were to say over the radio
    that they saw something suspicious, thats something that you would write down,
    correct?

A. I would think so, yes.

Q. You think so. So, if someone said, for
    example, they saw one of the suspects doing counter-surveillance, looking for
    police, you wouldve written that down, correct?

A. I believe I would have.

Q. And that would be important because thats
    what you guys were looking for which is suspicious activity that day?

A. Correct.

Q. Okay. And you had a chance to review your
    surveillance report from the 19
th
?

A. Yeah, I have it right here too.

[46]

The reason Fanikayode took the approach he did, is
    clear. He wanted to blunt the apparent connection between him and the shipment,
    and he could only do that by pursuing this line of questioning to, hopefully
    (from his perspective), show that he was not conducting counter-surveillance.
    Therefore, if Officer Willschick was able to give this testimony  which is
    what Fanikayodes counsel seems to have thought  then why couldnt Officer
    McCutcheon? Maybe both should have been permitted to do so. Maybe neither. In
    any case, the trial judge was not asked by counsel to weigh in and provide
    guidance, and she otherwise saw no need to intervene on her own initiative.

[47]

In the circumstances of this case, it was not an
    error to permit the admission of the counter-surveillance conclusion. Nor was a
    limiting instruction required, given its lack of importance and the trial
    judges decision to not repeat, or otherwise highlight, the police evidence in
    this respect. In fact, given how Fanikayode advanced his defence, if the trial
    judge had referred to this evidence in her charge, he could have claimed that
    she unnecessarily drew attention to it.

[48]

I would reject this ground of appeal.

As it relates to Fanikayode, was the
    verdict unreasonable?

[49]

As there was ample evidence to support each verdict,
    this ground of appeal must fail.

conclusion

[50]

For these reasons, I would dismiss the appeals
    against conviction.

[51]

I would grant Olufeko leave to appeal his sentence,
    but would dismiss the appeal.

Released: April 19, 2022 K.M.v.R.

J. George J.A.

I agree. K. van Rensburg J.A.

I agree. I.V.B. Nordheimer J.A.





[1]

R. v. W.(D.)
, [1991] 1 S.C.R. 742.


