DATE: 20050318
DOCKET: C41605
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – SALVATORE (SAM) CIRILLO (Appellant)
BEFORE:
GOUDGE, FELDMAN and JURIANSZ JJ.A.
COUNSEL:
Neil R. Jones for the appellant
Croft Michaelson for the respondent
HEARD & RELEASED ORALLY:
March 11, 2005
On appeal from the conviction of Justice David S. Crane of the Superior Court of Justice dated January 27, 2004.
E N D O R S E M E N T
1The appellant pleaded guilty to possession of a small amount of cocaine and was found guilty, by a jury, of trafficking in cocaine.
2Aside from his guilty plea, the appellant testified, in chief, that he used cocaine with his alleged co-venturer on other occasions. The appellant attacks the trial judge's instruction that the appellant’s evidence that he was a cocaine user could be used as one factor of many factors in assessing his credibility. Defence counsel at trial conceded that such an instruction could be given. The judge went on to immediately caution the jury against propensity reasoning and that they should not conclude the appellant was guilty of the trafficking offence because he was a drug user. Given, that the appellant introduced the evidence of his prior use in chief, the trial judge did not err in telling the jury they could use it in assessing his credibility.
3There was no error in the trial judge’s comment that the appellant, as a user, would know the substance cocaine. This was relevant because the Crown had to establish that the appellant knew the substance in the packages was cocaine. Of course, had the jury accepted or had a reasonable doubt about the appellant’s evidence that he did not see the content of the packages, this instruction becomes irrelevant. We see no merit in this ground of appeal.
4The appellant argues that the instruction regarding the second step of the Carter analysis was confusing and unbalanced. The trial judge did remind the jury that they should consider all the evidence except the co-venturer’s statements, and specifically told them they should consider the appellant’s evidence on the second step of the Carter analysis, but did not say more than that. It would have been better had the trial judge reviewed the defence evidence that was difficultly admissible in the same way he reviewed the Crown’s evidence on this issue. However, he elsewhere reviewed the defence’s position and evidence in detail.
5Defence counsel at trial did not object to the charge. While this was not a model charge, looking at the charge as a whole, it was sufficient to ensure the jury appreciated the defence’s evidence and position. We would not give effect to this ground of appeal.
6The appeal is dismissed.
“S.T. Goudge J.A.”
“K.N. Feldman J.A.”
“R.G. Juriansz J.A.”