



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Enotie, 2017 ONCA 966

DATE: 20171207

DOCKET: C61068

Laskin, Pepall JJ.A., and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Osamwonyi Enotie

Appellant

Thomas Arbogast, for the appellant

Kevin Rawluk, for the respondent

Heard and released orally: November 29, 2017

On appeal from the conviction entered on April 19, 2013
    and the sentence imposed on June 24, 2013 by Justice Robert A. Clark of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted in 2013 of a number of charges arising from
    five carjackings. He was directly implicated in the last of these carjackings.
    Specifically he was pursued by police in a stolen vehicle from which he was
    caught fleeing. He was also charged and convicted on four other carjackings on
    the basis of similar fact evidence, all of which incidents took place between
    November 2 and 11, 2010.

[2]

There were significant similarities between the carjacking in respect of
    which he was apprehended and the other four incidents. There was also
    circumstantial evidence linking him personally to the other carjackings in the
    form of cell phone localization evidence.

[3]

The appellant appeals his conviction on two grounds relating to the
    trial judges charge to the jury.

[4]

It is his position that the trial judge erred by improperly instructing
    the jury on how to assess the similar fact evidence. The trial judge further
    erred by improperly instructing the jury on how to assess group membership in
    the context of similar fact evidence because:

(a) he did
    not specifically instruct the jury that it could not employ similar fact
    evidence to establish Mr. Enoties membership in the group; and

(b) his
    instructions stated that the jury could use similar fact evidence to determine
    membership of the group.

[5]

The appellant asks for a new trial.

[6]

The trial judge ruled on the Crowns application to permit the
    introduction of this form of evidence on April 5, 2013, for which he provided
    full reasons on April 19, the day upon which he also gave his charge to the
    jury.  No appeal is taken from his decision to admit the similar fact evidence.
    Indeed appellants counsel concedes that that judgment is unassailable.

[7]

It is worth noting that the trial judge conducted pre-charge conferences
    which ran for almost two days. The charge itself apparently went through eight
    drafts with defence and Crown counsel signing off on it the night before it was
    delivered. A review of the transcripts of the pre-charge conferences indicates
    that the form of charge went through a detailed line-by-line review by both
    counsel and the court.

[8]

Furthermore, following his instructions the trial judge solicited
    comments from counsel. Although not dispositive of the issue, we note that
    counsel did not object to any part of the charge, including that which was
    devoted to the similar fact instruction.

[9]

In argument, appellants counsel directed the court to but very few
    paragraphs in the charge with which he took exception. The charge itself ran to
    more than 130 pages.

[10]

We
    have concluded from a plain reading of the ten pages that deal with similar
    fact evidence, that the charge faithfully follows the two-step process set out
    by the Supreme Court of Canada in
R. v. Perrier
, [2004] 3 S.C.R. 228. In
    our view, the instructions are sufficient to ensure that the jury did not use
    the group activity to identify the appellant in relation to the groups acts
    unless he was specifically linked to those acts, namely the four other acts of
    carjacking.

[11]

Reading
    the charge as a whole, we are satisfied that the jury would not be confused by
    the instructions so given.

[12]

For
    these reasons, the conviction appeal is dismissed. The sentence appeal is
    dismissed as abandoned.

John
    Laskin J.A.

S.E.
    Pepall J.A.

Arthur
    M. Gans J.


