DATE: 20061003

DOCKET: C44052

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MIROSLAV PAPAZ (Appellant)

BEFORE:

MOLDAVER, GOUDGE AND SHARPE JJ.A.

COUNSEL:

Paul Chumak, Q.C.

for the appellant

James Palangio

for the respondent

HEARD & ENDORSED:

September 29, 2006

On appeal from conviction by Justice C. R. Harris of the Superior Court of Justice, sitting with a jury, dated July 14, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant raises two grounds of appeal against conviction.

[2] On the first ground, assuming that some of the jurors may have heard the impugned portions of the tape that the trial judge ruled inadmissible, the trial judge was best positioned to determine what, if any, prejudice this occasioned to the appellant and what, if any, corrective steps, he could take to cure it.

[3] The trial judge found that the risk of prejudice was negligible at best and he gave a written instruction to the jury which, in his view, overcame any possible prejudice to the appellant. In the end, he found that “there is no material prejudice” to the appellant. Accordingly, he dismissed the mistrial motion. In our view, it was open to the trial judge to make that finding and we see no basis for interfering with it.

[4] With respect to the jury selection issue, we are of the view that the provisions of the Criminal Code relating to the selection of jurors names under s. 631(2) were complied with. On its face, the selection process was proper and the trial judge found that “the cards were mixed appropriately in order to obtain the necessary policy and practice of random and purposeless choosing”. In our view, that finding was open to the trial judge and we see no basis for interfering with it.

[5] The appeal is accordingly dismissed.