



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Iyeke, 2016 ONCA 349

DATE: 20160510

DOCKET: C59076

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Iyeke

Appellant

Andrew Furgiuele, for the appellant

John A. Neander, for the respondent

Heard: May 3, 2016

On appeal from the convictions entered on November 28,
    2013 and the sentence imposed on January 17, 2014 by Justice Michael G. Quigley
    of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant was convicted of several drug and firearm offences by a
    jury. He appeals his convictions on three counts relating to the possession of
    a prohibited firearm and two counts of breach of a firearm prohibition order.
    He does not appeal his convictions on two counts of possession of cocaine for
    the purpose of trafficking and one count of possession of the proceeds of
    crime.

[2]

The police received information from a confidential informant that the
    appellant trafficked in cocaine and was in possession of a gun. The
    confidential informant provided police with details about the appellant,
    including the address of his apartment and the kind of car he drove. The police
    conducted surveillance to corroborate some of the information the confidential
    informant had provided. They saw him engaged in what appeared to be hand-to-hand
    drug transactions. The police obtained a search warrant to search the
    appellants car and his apartment. The police stopped the appellant in his car
    and arrested him. They found cocaine in the car. Later that day they executed a
    search warrant at his one-bedroom apartment and discovered a large quantity of
    cocaine, several thousand dollars and a loaded prohibited handgun.

[3]

The appellant testified at trial and admitted that the drugs found in
    his car and bedroom belonged to him. He however denied that the gun was his. He
    called evidence that others had access to the apartment. The jury rejected his
    evidence and he was convicted.

[4]

On appeal, the appellant submits that Crown counsel impermissibly urged
    the jury to reject his testimony by relying on the confidential informants
    hearsay statement that the appellant possessed a gun for the truth of its
    contents. The Crown counsel did this even though the informants hearsay
    statement was not in evidence. The appellant further submits that the trial
    judge magnified the prejudice by repeating the Crowns submission that the
    confidential informant had told the police the appellant had a gun and then
    went on to instruct the jury it could consider the statement as part of the
    evidence when determining the case.

[5]

The Crown submits that, understood in the context of the case, Crown
    counsels reference in her closing address to the informants statement did not
    result in any unfairness to the appellant. The Crown points out that defence
    counsel at trial did not object to the Crowns closing or request the trial
    judge to give a limiting instruction. Therefore the appellant should be
    precluded from raising this ground on appeal.

[6]

At trial, the police officer who testified that the police had received
    information from a confidential informant did not attribute the police
    knowledge of the gun to the confidential informant. He said the police had
    received a confidential tip and had other information. This testimony was
    admissible as a narrative to explain the actions taken by the police.

[7]

Crown counsel in her closing address told the jury that the informant
    had told the police that the appellant was in possession of a gun and they
    should consider this fact. This was no casual passing reference but, rather,
    the centrepiece of the Crowns closing address. She repeatedly linked the
    information about the presence of the gun to the confidential informant. She
    also invited the jury to consider whether it was reasonable that the gun
    belonged to somebody else given the fact that the confidential source had told
    the police that the appellant was in possession of a gun.

[8]

The trial judge also misstated the police officers testimony. He, too,
    told the jury that the confidential informant had told the police the appellant
    had a gun at the apartment. Then, in summarizing the Crowns position, the
    trial judge repeated the Crowns rhetorical question: Is it reasonable that
    the gun belonged to someone else given that a confidential source had told the
    police that [the appellant] was in possession of a gun?

[9]

We see no plausible tactical reason to explain the trial counsels failure
    to object and seek an instruction correcting the misinformation and directing
    the jury it could not use the informants tip for the truth of its contents. In
    any event, the jury charge is ultimately the responsibility of the trial judge,
    not defence counsel.

[10]

Crown counsels mistaken and improper closing address, left uncorrected,
    rendered the trial unfair. This is a not a case for the application of the
    proviso. It is for a jury to assess the credibility of the appellants
    testimony the gun was not his.

[11]

The appeal is allowed. The firearms and breach of the firearm prohibition
    order convictions are vacated and those charges are remitted to the Superior
    Court of Justice for a new trial.

[12]

It is necessary to clarify the sentencing order. The trial judge,
    applying the totality principle, reduced the total sentence imposed by one
    year. The appellant concedes that the reduction in total sentence for totality
    falls away when the firearms and breach of prohibition order convictions are
    quashed. However, he submits, and the Crown agrees, that the credit he received
    for presentence custody should remain. The appellant received two concurrent
    three-year sentences for the cocaine offences and a concurrent one-year
    sentence for possession of proceeds of crime. He received 27 months credit for
    presentence custody. The result is that his effective sentence is nine months.

E.A. Cronk J.A.

R.G.
    Juriansz J.A.

David Watt J.A.


