COURT OF APPEAL FOR ONTARIO

DATE: 20000303

DOCKET: C29696

LASKIN, O'CONNOR AND SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

and

PHILIP NATARELLI

Appellant

Peter Bawden for the appellant

Catherine A. Galligan for the respondent

Heard: February 24, 2000

On appeal from the conviction dated March 5, 1998 and sentence dated April 9, 1998 of G.B. Smith J., sitting with a jury.

SHARPE J.A.:

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking. He appeals on the ground that the trial judge failed to charge the jury that the included offence of possession was a possible verdict.

[2] At trial, the appellant advanced two defences. The primary defence was that the Crown had failed to prove that the appellant had possession of the narcotics found in the garage owned and operated by the appellant and his brother. The alternative defence was that even if possession had been established, the Crown had failed to prove that the possession was for the purpose of trafficking. The trial judge clearly charged the jury that there were two elements to the offence of possession for the purpose of trafficking, possession and an intention to traffic. He reminded the jury at various points of the Crown’s obligation to prove both elements beyond a reasonable doubt.

[3] At the conclusion of the charge, Crown counsel raised the objection that the included offence of simple possession ought to be left with the jury. The trial judge dismissed this objection on the ground that the way the indictment was drawn left only the possibility of the full offence of possession for the purpose of trafficking.

[4] In my view there was nothing in the way the indictment was drawn to suggest that simple possession was not an included offence. It is firmly established that a trial judge sitting with a jury must instruct the jury on the principal offence as well as any included offences and the possible verdicts that may be returned: see Head v. R. (1986), 1986 8 (SCC), 30 C.C.C. (3d), 481 (S.C.C.).

[5] I do not accept the respondent’s contention that the failure to leave the jury with the included offence can be excused on the basis that given the quantity of drugs found in the garage, there was no air of reality to simple possession as a possible verdict. This position is inconsistent with that taken by Crown counsel at trial. Moreover, although a very substantial quantity of cocaine was found in the garage, there was clearly an issue as to whether the appellant was the only person to be in possession of the drugs. Questions asked by the jury indicated that the jury was troubled by this issue. The jury’s failure to agree on verdicts with respect to other counts in the indictment relating to other drugs found on the premises may indicate a similar concern. Although the appellant did not testify, there was evidence that he was a drug user. The trial judge dismissed a motion for a directed verdict solely on the basis that as the appellant had been found in the possession of a small quantity of cocaine, it would be open to the jury to conclude that he had possession of the quantities of cocaine found in the garage. The trial judge indicated in his charge to the jury the issue of whether possession was had for the purpose of trafficking was a live one. Taking all these factors into account, it is my view that the trial judge erred in failing to leave the jury with the included offence of simple possession as a possible verdict.

[6] In my view, the case falls within the principle enunciated by Sopinka J. in R. v. Haughton (1994), 1994 73 (SCC), 93 C.C.C. (3d), 99 (S.C.C.) at 107:

In cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact that it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable.

[7] Accordingly, I would allow the appeal against conviction and direct a new trial. In these circumstances, it is not necessary for me to deal with the appeal from sentence.

“Robert J. Sharpe J.A.” “I agree J.I. Laskin J.A.” “I agree D. O’Connor J.A.”

Released: March 3, 2000