



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Opeyemi, 2015 ONCA 41


DATE: 20150123

DOCKET: C56076

Feldman, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Olawale Opeyemi

Appellant

Laurence Cohen, for the appellant

Jocelyn Speyer, for the respondent

Heard and released orally: January 12, 2015

On appeal from the conviction entered on July 27, 2012 by
    Justice W. Brian Trafford of the Superior Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted in a judge alone trial of kidnapping and
    unlawful confinement after a trial with three co-accused.  The appellant was represented
    by counsel until the 11
th
day of the 13 day trial.  Although the
    appellant did not testify, he conducted his own defence for the last two days. 
    The main issue at the trial was identity. Recordings of the kidnappers voice
    formed part of the evidence at trial.

[2]

Three men, not including the appellant, kidnapped the victim, Nana, in
    Toronto and transported him to Hamilton.  Nana was physically confined in the
    basement of a home there, burned with an iron and threatened if a ransom was
    not paid.  That night, two men, one of whom Nana described as having a thick
    Nigerian accent and whose face was obscured by a hairnet, visited Nana and
    threatened to kill his mother if a ransom was not paid.

[3]

The kidnappers contacted Nanas friends and associates and demanded a
    ransom.  Nanas friends contacted police.  The police intercepted the telephone
    communications of the parties to the kidnapping.  At the direction of the
    police, one of Nanas friends arranged to meet the kidnappers to deliver the
    ransom.  That attempted delivery was not successful.  The kidnappers then
    arranged a second meeting with the friend at which the appellant was allegedly
    to obtain the ransom.  The vehicle driven by the appellant and of which he was
    the sole occupant was followed by the police.  The vehicle was close to and
    tracked the path of the vehicle operated by the friend who was to deliver the
    ransom.  When the appellant was arrested, the telephone that was used for
    discussions with the friend about the delivery of the ransom and between the
    parties to the kidnapping was found in his pocket with the earpiece in his ear. 
    Cell tower evidence tracked the phone from Scarborough the day before the
    kidnapping to Hamilton around the time of the kidnapping and back to Toronto to
    the area where the ransom was to be delivered.

[4]

The trial judge was satisfied beyond a reasonable doubt that the
    appellant committed the alleged offences as a principal offender or as a
    person who aided or abetted the other perpetrators.  He found, based on the
    surveillance by police, the intercepted cellphone conversations and cell tower
    records, that:

(a)   the appellant was the
    sole occupant of the black Honda police had followed as the delivery of the
    ransom to the friend was arranged by the cellphone conversations;

(b)   the phone recovered in
    the appellants possession with an earpiece connected to the phone in the
    appellants ear at his arrest was the same phone used to contact the friend as
    well as another kidnapper;

(c)   it was the appellant
    who participated in the intercepted telephone conversations making arrangements
    for the pick-up of the ransom;

(d)   the appellant was the
    person whose face had been obscured the night before and who made the threats.

[5]

The appellants counsel, at his own request, was removed from the record
    for ethical reasons on the 11
th
day of the 13 day trial.

[6]

On appeal, the appellant originally argued that the trial judge erred in
    four respects:

1.    The trial judge failed to
    adequately explain the danger to the appellant of acting on his own behalf
    because by speaking in the courtroom of necessity because he was
    self-represented, the appellant would allow the judge to compare his voice to
    the voices heard on the intercepted cellphone conversations.

2.    Although the trial judge
    did not use the voice of the appellant in the courtroom to support his
    conclusions and disavowed use of that evidence, his alternative conclusion that
    he would have found that the appellants voice in the courtroom was the voice
    on the intercepted communications created an appearance of unfairness.

3.    The appellant did not
    waive his right to have counsel.

4.    The trial judge erred in
    failing to label the appellant as either a principal or an aider or abetter to
    the offences.  This last alleged error was abandoned in oral argument.

[7]

The trial judge indicated that he was satisfied beyond a reasonable
    doubt by evidence other than the appellants voice as heard in the courtroom
    that the appellant participated in the kidnapping.  This was a reasonable
    conclusion available to him on the evidence he heard.  In response to arguments
    made at trial about the propriety of comparing the appellants voice as heard
    in the courtroom to the voice heard on the intercepted cell phone
    conversations, he indicated that it was not necessary to decide that question
    but that if he had been required to decide that issue, he would have found that
    the two voices were the same.  This alternative conclusion does not undermine
    the strength of the reasons given for the findings of guilt nor contaminate
    them with any improper line of reasoning.  The trial judge did not err in
    responding to the arguments made to him and no appearance of unfairness was
    thereby created.

[8]

The appellant was not prejudiced in any way by having to use his own
    voice to act on his own behalf because the trial judge did not use that
    evidence as a basis for conviction.  For that reason, it is not necessary to
    express any opinion as to the acceptability of such a course or whether the
    trial judge should have expressly warned him about the dangers of
    self-representation in these circumstances.

[9]

At least two of the appellants co-accused were in custody when the
    appellants counsel was removed.  The appellant had had at least four different
    counsel speak or act on his behalf during the history of these proceedings. 
    After his trial counsel was removed, the following exchange occurred in the
    courtroom:

Opeyemi:     I said thats all I want to do, to say my piece,
    my part of this situation.

The Court:   You are content to defend yourself, are you,
    without the help of a lawyer?

Opeyemi:     Your Honour, everything is almost done already. 
    There is nothing for me to do anything.

[10]

The
    appellant cross-examined relevant remaining witnesses and made closing
    submissions.  There is nothing in the record to suggest that his position was
    not adequately put to the trial judge.  Given all these circumstances, the
    trial judge did not err in permitting the appellant to represent himself and
    did not err in the manner in which he dealt with the appellant.

[11]

The
    trial judges findings of guilt were amply supported by the evidence.  The
    Crown submits that if the conviction for kidnapping is upheld, the conviction
    for unlawful confinement should be stayed pursuant to
R. v. Kineapple,
[1975] 1 S.C.R. 729 and
R. v. Vu
, 2012 SCC 40; [2012] 2 S.C.R. 198. 
    We agree and the conviction for unlawful confinement is stayed.  Otherwise the
    appeal is dismissed.

K. Feldman J.A.

Janet Simmons J.A.

G. Pardu J.A.


