DATE: 20010122

DOCKET: C34593

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– ANGUS SYBLIS (Appellant)

BEFORE: CATZMAN, CARTHY and WEILER JJ.A.

COUNSEL: Daniel A. Stein, for the appellant Fergus ODonnell, for the respondent

HEARD: January 18, 2001

On appeal from the conviction imposed by Justice Bonnie J. Wein, sitting with a jury, dated November 19, 1999 and from the sentence imposed by Justice Wein dated January 14, 2000.

E N D O R S E M E N T

[1] The appellant was tried by Justice Wein with a jury on charges of importing cocaine and hashish. He was found guilty and sentenced to seven years imprisonment with respect to the cocaine charge and four years concurrent for the hashish. He appeals both his conviction and sentence.

[2] The appellant submits that, in her charge to the jury, the trial judge misapprehended the evidence. The appellant further submits that this misapprehension resulted in the trial judge expressing an opinion to the jury that denied the accused the opportunity to put his defence before the jury. The impugned passage is as follows:

Obviously, members of the jury, there is contradictory or conflicting evidence bearing on the essential issue that you have to decided concerning the knowledge of Mr. Syblis that he had drugs when he entered Canada. It should be obvious to you that the evidence favouring the Crown and that favouring Mr. Syblis cannot stand together. Each version is at odds with the other. You must, therefore, assess the credibility of the witnesses supporting each version and the reasonableness of the inferences to be drawn from the evidence.

[3] The only issue at trial was whether the appellant knew what was in his shoes and luggage. The issue of knowledge is not generally the subject of directly contradictory evidence. It is usually a matter of inference. For example, one of the pieces of evidence that the jury had to consider was that the running shoe of the appellant that contained drugs in the sole weighed twice as much as that which did not. The inference from this evidence is that the appellant would have realized that one of his shoes was considerably heavier and, implicitly, that he knew it contained drugs. The appellant testified and denied any knowledge of the drugs in his shoe. Having regard to the whole of the paragraph and the charge as a whole, we are of the opinion that there were no errors in this portion of the charge as alleged by the appellant.

[4] The appellant further submits that the trial judge “turned the trial into a credibility contest”. As the appellant concedes, immediately after the challenged utterance, the trial judge charged the jury respecting W.(D.). While the charge on W.(D.) may not have been perfect with respect to the third branch of W.(D.), it was sufficient in the circumstances of this case.

[5] The appellant further submits that the trial judge misapprehended the jury’s second question, which was as follows:

Written copy of Judge’s Charge specifically detailing charges guilty versus not guilty and ‘reasonable doubt’.

[6] The trial judge told the jury that she would not give them a written copy of her charge but asked whether the jury wished her to re-instruct them with respect to which party bears the burden of proof and reasonable doubt. The jury nodded. After the trial judge had recharged the jury, the defence asked for a recharge on W.(D.). The Crown opposed this request. The trial judge refused to recharge the jury as she was satisfied that the jury had indicated that their question had been answered and the jury did not seek further clarification. The jury’s question indicated that they were having difficulty with the concept of reasonable doubt. The trial judge explained again what reasonable doubt was and, in our opinion, this was sufficient. We would not give effect to this ground of appeal.

[7] The appeal as to conviction is dismissed.

[8] The appellant had 2.13 kilograms of cocaine in his bag and 1 kilogram of hashish in his shoe. He had no prior criminal record of any significance. The trial judge observed that R. v. Cunningham, 1996 1311 (ON CA), 104 C.C.C. (3d) 542, a 1996 decision of this court, “suggested that the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penetentiary.” The appellant submits that the trial judge erred in using the decision in Cunningham as a guide because it involved a much greater amount of cocaine, namely, 5 kilograms. The appellant acknowledges, however, that Cunningham involved a guilty plea whereas this case does not contain such a mitigating factor. At trial, defence counsel sought a sentence in the range of five to six years and, on appeal, it is submitted that the sentence should be five years. In our view the sentence imposed by the trial judge did not reflect any error in principle and was not demonstrably unfit. While leave to appeal sentence is granted, the appeal as to sentence is also dismissed.

Signed “M.A. Catzman J.A.”

“J.J. Carthy J.A.”

“K.M. Weiler J.A.”