



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adeleke, 2017 ONCA 665

DATE: 20170822

DOCKET: C61904

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adenike Adeleke

Appellant

Janani Shanmuganathan, for the appellant

Sarah Shaikh, for the respondent

Heard:  August 16, 2017

On appeal from the conviction entered by Justice Joseph
    Fragomeni, of the Superior Court of Justice, sitting with a jury, dated February
    1, 2016, and on appeal, if leave be granted, from the sentence imposed on April
    18, 2016.

REASONS FOR DECISION

[1]

The appellant was charged with one count of importing
    heroin and one count of conspiracy to import heroin.  She was acquitted on the
    importing charge and convicted on the conspiracy charge.  The trial judge
    imposed a sentence of six years.

[2]

The appellant appeals, arguing that the acquittal on the importing
    charge is irreconcilably inconsistent with the conviction on the conspiracy
    charge.  She contends that the conviction on the conspiracy charge is
    unreasonable and must be quashed.

[3]

Alternatively, the appellant argues that the trial judge erred in
    sentencing her as though she were a party to the importing charge on which she
    was acquitted.  The appellant submits that the trial judge should have
    sentenced her on the basis that she was a party to a conspiracy to import some
    unknown amount of heroin.  The appellant argues that a sentence of one or two
    years would be appropriate.

[4]

At the end of oral argument, the court advised counsel that the appeal
    was dismissed with reasons to follow.  These are the reasons.

[5]

In her submissions, counsel for the appellant argued that the
    appellants culpability at trial on both counts turned on the same question 
    did the appellant know that the package contained heroin?  Counsel further
    argues that the resolution of that question as it applied to each count turned
    on the same evidence.  She argues that the different verdicts must reflect some
    misunderstanding of the legal instructions or an inappropriate compromise by
    the jury.

[6]

R. v. Pittiman
, 2006 SCC 9 is the controlling authority.  Charron
    J. said, at para. 7:

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence.  The jury is entitled to accept or reject some, all
    or none of any witnesss testimony.  Indeed, individual members of the jury
    need not take the same view of the evidence so long as the ultimate verdict is
    unanimous.  Similarly, the jury is not bound by the theories advanced by either
    the Crown or the defence.  The question is whether the verdicts are supportable
    on any theory of the evidence consistent with the legal instructions given by
    the trial judge.

[7]

We think the verdicts can be reconciled.  It was open to the jury on
    this evidence to be satisfied beyond a reasonable doubt that the appellant was
    a party to an ongoing conspiracy to import heroin that existed when the heroin
    shipment arrived in Canada, while at the same time having a doubt as to whether
    the appellant knew of the arrival of that specific shipment before it entered
    Canada.  If the jury concluded that the appellant learned of the importation
    only after the drugs were in Canada and in the possession of the co-conspirators,
    or if the jury had a doubt on that factual issue, the jury would have, on the
    instructions given by the trial judge, acquitted the appellant on the importing
    charge and convicted her on the conspiracy charge.

[8]

The verdicts are not irreconcilably inconsistent.  The conviction on the
    charge of conspiracy to import is not unreasonable.

[9]

Counsel submits that the trial judge effectively held the appellant
    responsible for the importation of the amount of heroin referred to in the
    importing charge for which the appellant was acquitted.  She submits that the
    trial judge was obligated to give effect to the jurys verdict and the facts as
    clearly found by the jury in arriving at that verdict when imposing sentence.

[10]

We are satisfied that on the evidence, even though the appellant was
    acquitted on the importing charge, the trial judge was entitled to consider the
    amount of heroin imported in relation to that count as indicative of the nature
    of the conspiracy to which the appellant was a party.  It was open to him to
    infer that she was a party to a conspiracy to import significant amounts of
    heroin into Canada.  On that view of the evidence, the sentence imposed (six
    years) was appropriate.

[11]

The conviction appeal is dismissed.  Leave to appeal sentence is
    granted, and the sentence appeal is dismissed.

Doherty
    J.A.

H.S.
    LaForme J.A.

Paul
    Rouleau J.A.


