



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adjei, 2019 ONCA 486

DATE: 20190612

DOCKET: C65906

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

BETWEEN

Her Majesty the Queen

Respondent

and

Emmanuel Adjei

Appellant

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 appellant was convicted of forcible confinement. The Crown alleged
    that the appellant, his brother, and a third man came to the complainants
    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 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 at trial was identity. The Crown alleged the appellants
    brother was driving and the appellant was in the front passenger seat. The
    complainant testified that the appellants brother, whom he knew, was in the drivers
    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 appellants counsel in cross-examination.
    After the Crown eventually objected on the basis that the questions about
    identity were repetitive and the complainants position clear, the trial judge
    stated, At this point, he has resiled from the identification of your client.
    The appellants counsel then indicated that he would move on with his
    questioning.

[4]

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 identify, 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 appellants evidence that
    he was present in a vehicle with his brother and the complainant. The trial
    judge rejected as an outright fabrication the appellants statement to the
    police that he and his brother only had a friendly chat with the complainant.

[5]

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]

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]

We are not satisfied that the finding of guilt was unreasonable. The
    finding was supported by the complainants testimony, including his qualified
    identification of the appellant and his identification of the appellants
    brother as the driver. The trial judge was entitled to accept the appellants
    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
    complainants 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 drivers 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]

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 appellants 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 appellants submission that the reasons were insufficient.

[9]

The appellants complaint about interference with his counsels
    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 counsels
    cross-examination.

[10]

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 judges 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 counsels
    cross-examination by the trial judge.

[11]

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]

We
    disagree. The trial judge identified the relevant mitigating factors, including
    the appellants favourable pre-sentence report and lack of criminal record. She
    also considered the appellants 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]

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.


