COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. LOUIS GIOVINAZZO (Appellant)
BEFORE: CATZMAN, ABELLA and MacPHERSON JJ.A.
COUNSEL: James Stribopoulos for the appellant
Susan Reid for the respondent
HEARD: February 15, 2000
On appeal from the conviction of Mr. Justice Tobias, sitting with a jury, on May 8, 1996 and the sentence imposed on June 20, 1996.
E N D O R S E M E N T
[1] We called on the Crown to address only two issues: the reference in the charge to the accused’s criminal record and the judge’s response to the jury’s question.
(A) Criminal Record
[2] It appears from reading the charge, that the reference to a “criminal record” was mistakenly attributed to the “accused”, and was meant instead to apply to the witness Hirlehey, the only witness at the trial whose criminal record was in evidence. This appears to be the way counsel understood the reference: neither objected, and the Crown had undertaken not to cross-examine the appellant on his criminal record. There is no reason to believe the jury heard it otherwise.
[3] Even if the reference to the accused’s record was an error, we can see no resulting prejudice to the appellant and would apply the proviso, given where and how in the charge the reference was given, and the overwhelming weight of the evidence.
(B) The Jury’s Question
[4] There was no request from defence counsel that the trial judge repeat to the jury that there had to be a link between assault and bodily harm. Nor is there any basis for concluding that the jury’s question reflected any lack of awareness about this link such that a reminder was required from the trial judge. The only theory of the Crown – and the basis of the whole trial – was that the appellant’s assaults caused physical harm. There could therefore have been no doubt in the jury’s mind that at issue were the assaults and whether they caused any bodily harm. The answer they received from the trial judge was complete in the circumstances, especially given his reference to the necessity for harm to have been suffered “at the hands of the accused.”
[5] We see no merit in the other grounds of appeal. The appeal from conviction is therefore dismissed, leave to appeal sentence is granted but the appeal from sentence is dismissed.