DATE: 20020121 DOCKET: C35019
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– ROMEO WOOLERY (Appellant)
BEFORE:
FINLAYSON, CARTHY and WEILER JJ.A.
COUNSEL:
Russell Silverstein, for the appellant
Amy Alyea, for the respondent
HEARD:
January 15, 2002
RELEASED ORALLY:
January 15, 2002
On appeal from the conviction imposed by Justice W.J. Lloyd Brennan, sitting with a jury, dated June 9, 2000.
E N D O R S E M E N T
[1] The appellant concedes that the trial judge gave a proper post-Lifchus charge on reasonable doubt. He objects however to the failure of the trial judge to answer a question from the jury as to the difference between “beyond reasonable doubt” and being “virtually certain”.
[2] In our opinion, the distinction was amply explained in the original charge and the repetition of that portion of the charge by the trial judge was an appropriate response to the question. The charge included the instruction that, if the jury was not sure, it must acquit. Consequently, there is no reasonable likelihood that the jury misapprehended the burden of proof.
[3] A second objection related to a conference between the trial judge and counsel in his chambers with respect to advice he had received from his staff that the jury wanted the courtroom cleared when it delivered its verdict. In our opinion, the conduct of the trial judge in these circumstances was not inappropriate. The substance of the discussion in chambers was repeated by the trial judge in open court and, on any version of what was said in chambers, the clear inference was that the jury was concerned about delivering a verdict in the presence of supporters of the appellant. This communication resulted in no prejudice to the appellant and did not justify further investigation on the part of the trial judge as to the jury’s thinking.
[4] At most, what happened in chambers amounted to an irregularity and this is a proper case for the application of the curative provisions of s. 686(1)(b)(iv) of the Criminal Code.
[5] Accordingly, the appeal is dismissed.
Signed: “G.D. Finlayson J.A.”
“J.J. Carthy J.A.”
“K.M. Weiler J.A.”