COURT OF APPEAL FOR ONTARIO

DATE: 20000217

DOCKET: C25579

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.