DATE: 20021011 DOCKET: C36557

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

CARLO BERTUCCI

Appellant

Barry Fox, for the appellant

Beverly J. Wilton, for the respondent

Heard: September 19, 2002

On appeal from the convictions entered by Justice J. McGarry, sitting with a jury, on May 9, 2001 and the sentences imposed on September 4, 2001.

O’CONNOR A.C.J.O.:

[1] After a trial by a court composed of a judge and jury, the appellant was convicted of six drug-related offences and sentenced to a term of seven years imprisonment. In addition, the trial judge imposed fines totalling $10,000 or on default of payment an additional six months in jail. This is an appeal against the convictions and sentences.

[2] The appellant raises four grounds of appeal against the convictions. Three of those grounds relate to the trial judge’s charge to the jury as it applied to all of the counts in the indictment. The other ground of appeal applies only to count 8, which is a charge of possession of cocaine for the purpose of trafficking.

[3] Trial counsel for the appellant (not Mr. Fox) did not object to the charge on any of the bases on which this appeal is brought.

Reasonable Doubt

[4] It is argued that the trial judge erred in the manner in which he defined reasonable doubt. The trial judge’s instruction on reasonable doubt complied with the criteria set out by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320, except in two respects. At one point, the trial judge said:

In short, if, based on the evidence before the court, you are sure the accused committed the offence you are considering, you should convict him.… [Emphasis added.]

[5] In addition, although the trial judge correctly told the jury that a reasonable doubt is “logically derived from the evidence”, he neglected to tell them that it could also be found in an absence of evidence.

[6] Reading the charge as a whole, I am not persuaded that the trial judge’s instruction on reasonable doubt constitutes a reversible error. The trial judge told the jury not to speculate and to found their fact-finding inquiries upon reasoned conclusions. Moreover, in the part of the charge describing what constitutes reasonable doubt, the trial judge included two very clear instructions on the burden of proof, the effect of which made it clear that if the Crown’s evidence fell short of establishing guilt beyond a reasonable doubt – an absence of evidence – then the jury must acquit. I am satisfied that on a fair reading of the whole charge, the jury would have understood the standard of proof.

The R. v. D.W. Instruction

[7] The appellant submits that the trial judge erred in instructing the jury on the third branch of the instruction prescribed in R. v. D.W., [1991] 1 S.C.R. 742. After correctly setting out the first and second branches of the instruction, the trial judge said:

So even though you disbelieve him, but if he leaves you with a reasonable doubt as to whether the Crown’s proved its case, then you must acquit. Of course, if you are satisfied, having listened to his evidence, and you do not believe him, and he does not raise a reasonable doubt, then you are entitled to consider whether you should convict the accused.

[8] The trial judge did not follow the exact wording suggested by Cory J. in D.W. This part of the instruction is at best confusing and possibly misleading in suggesting that the appellant has some obligation to raise a reasonable doubt.

[9] That said, it is well-settled that the effectiveness of a charge must be assessed by reading it in its entirety, rather than by focussing on particular words that might have been omitted or included. See e.g. R. v. Pilgrim (2001), 150 O.A.C. 394 (C.A.). There can be no doubt that a fair reading of the charge in this case made it clear to the jury that the burden of proving the accused’s guilt beyond a reasonable doubt remained with the Crown throughout and that there was no burden on the accused to establish his innocence or to raise a reasonable doubt. The trial judge made at least ten references, spread throughout the charge, to the Crown’s burden. Although the use of the challenged language was not ideal, I am satisfied that the charge, when read as a whole, did not mislead the jury.

Treating Each Count Separately

[10] The appellant submits that the trial judge failed to instruct the jury that the evidence for each count must be treated separately and that only where there was enough evidence vis-à-vis a particular count to prove the charge beyond a reasonable doubt could the appellant be convicted.

[11] I do not accept this argument. The trial judge’s charge in this respect is very clear. Among other things he said:

I have indicated to you earlier, and it still applies, that you have to treat each count separately. Just because he has been charged with a number of counts should have no bearing on your decision. You must look at each one and decide whether or not the Crown has satisfied you beyond a reasonable doubt as to his guilt.

[12] Moreover, there was nothing in the manner in which the trial judge discussed the evidence or the elements of various offences which would have led the jury not to treat the charges separately. Finally, the manner in which the jury reached their verdicts strongly supports the conclusion that the jury did in fact address each count on a separate basis. There were eight counts in the indictment. Initially, the jury reported to the court that they had reached verdicts on three counts, but needed more time to consider the remaining counts. Next, they told the court they had reached a verdict on a fourth count and ultimately they convicted the appellant of six counts, acquitted him of one and were unable to agree on the eighth.

The Definition of Possession

[13] Count 8 in the indictment charged the appellant with possession of cocaine for the purpose of trafficking. The appellant contends that the trial judge erred in instructing the jury about the necessary elements upon which to conclude that the appellant was in possession of the cocaine that formed the subject matter of the charge.

[14] This count resulted from a search of a house in which the appellant lived at 61 Paddington Place, Woodbridge. Officers conducting the search of the basement living area adjacent to a bedroom found two one-ounce bags of cocaine hidden in the ceiling. In a closet just outside the bedroom adjacent to the bathroom, the officers found two film canisters hidden in the pocket of a jacket, one of which contained six milligram bags of cocaine, and the other, seven; an LCBO liquor bag containing five one-ounce bags of cocaine; and a shopping bag containing a kilogram of cocaine. In the main area of the bedroom, officers found thirty to forty unused CIBC envelopes and various other paraphernalia that were indicative of drug trafficking.

[15] There was substantial circumstantial evidence indicating that the basement bedroom was the appellant’s. However, the appellant testified that he lived on the top floor and that his brother lived in the basement bedroom. The appellant denied knowing about the items found in the basement.

[16] In his charge, the trial judge first read to the jury the definition of possession in s. 4(3)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, which reads as follows:

1. For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.…

[17] The trial judge’s charge then proceeded as if the drugs had been found in the basement bedroom rather than in a cupboard outside the bedroom and in the ceiling outside the bedroom. After reading s. 4(3)(a)(ii), the trial judge continued by telling the jurors it was up to them to decide whether or not the bedroom was possessed by the appellant and to determine if they were satisfied beyond a reasonable doubt that the appellant was responsible for the room. Next, he told the jury that someone had constructive possession of something if he gave it to someone else for safekeeping or hid it in a storage locker or hid it in a private bedroom.

[18] There are two difficulties with this part of the charge. First, more than mere responsibility for a room in which drugs are found is required in order to establish possession: R. v. Terrence, [1983] 1 S.C.R. 357. Moreover, the jury’s attention was not directed to the fact that the drugs were found in a cupboard and in the ceiling both outside the basement bedroom. The trial judge’s charge sent the message that the issue of possession turned on a finding that the basement bedroom, not the cupboard or ceiling area, belonged to the appellant.

[19] It appears that the jury was unclear about what was required to constitute possession in relation to count 8. In a question to the trial judge, the jury asked: “Does count 8 mean that Carlo Bertucci was in sole possession of the drugs?” The trial judge answered, apparently with the approval of counsel, by essentially repeating what he had told the jury in the main part of his charge.

[20] In my view, the manner in which the trial judge charged the jury on count 8 constitutes a reversible error. The issue was left to the jury on the basis that they could find that the appellant was in possession if he knew of the presence of the drugs and if they were satisfied that he was responsible for the bedroom adjacent to the cupboard and ceiling area where the drugs were found. Although there was evidence to connect the occupier of the bedroom to the cupboard, the trial judge should have carefully instructed the jury that the issue of possession turned on the control of the cupboard and ceiling area and the drugs found there and not simply on responsibility for the adjacent bedroom.

[21] For these reasons, I am of the view that the conviction on count 8 cannot stand. I am satisfied that this error does not affect the convictions on the other five counts.

Sentence

[22] The trial judge sentenced the appellant on six counts. Count 1 is a charge of conspiracy to traffic in cocaine from March to December 1998. The appellant was sentenced to seven years imprisonment. Counts 4 and 6 are charges of trafficking in cocaine involving sales by the appellant on September 17 and December 10, 1998. These sales form part of the evidence in support of the conspiracy charge. The appellant was sentenced to concurrent sentences of four years and five years on the trafficking charges. Counts 3 and 5 are charges of possession of the proceeds from the sales referred to in counts 4 and 6. The appellant was fined $3,000 and $7,000 on these charges with the provision that in default of payment he would serve an additional three months consecutive on each charge.

[23] In his reasons for sentencing, the trial judge found that the appropriate range for the appellant’s offences was five to eight years imprisonment. He imposed a sentence of seven years on the conspiracy charge and made all the other sentences concurrent, except for the terms of imprisonment for non-payment of the fines.

[24] In my view, a sentence of seven years is a fit sentence for the offence of conspiracy standing alone. The appellant had a previous conviction for trafficking in cocaine. The cocaine involved here was of a very high level of purity and the evidence in support of the conspiracy showed that the appellant was a high-level, sophisticated trafficker. It was necessary for the trial judge to emphasize general and specific deterrence and to impose a sentence that would adequately denounce the appellant’s criminal activity.

[25] That said, it appears from the trial judge’s reasons that he considered the totality of the accused’s conduct, including the circumstances giving rise to the conviction on count 8, in arriving at a total sentence of seven years. Because of my conclusion that the conviction on count 8 must be set aside, I think that a modest adjustment should be made to the total sentence imposed at trial. In my view, a reduction of one year would be appropriate.

Disposition

[26] In the result, I would allow the appeal against the conviction on count 8, set it aside and order a new trial. I would dismiss the appeals against the other convictions.

[27] I would grant the application for leave to appeal the sentences. I would vary the sentence on count 1 to a term of six years imprisonment. I would dismiss the appeals against the other sentences.

RELEASED: “OCT 11 2002” “DOC”

“Dennis O’Connor A.C.J.O.”

“I agree E.A. Cronk J.A.”

“I agree Robert P. Armstrong J.A.”