DATE: 20020206 DOCKET: C29320

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- JEAN PAUL BOLUS (Appellant)

BEFORE:

MOLDAVER, FELDMAN and MacPHERSON JJ.A.

COUNSEL:

John Erickson

For the appellant

Roger A. Pinnock

For the respondent

HEARD:

January 30, 2002

RELEASED ORALLY:

January 30, 2002

E N D O R S E M E N T

On appeal from the conviction by Justice T. O’Connor, sitting with a jury, dated September 24, 1997.

[1] We would not give effect to any of the grounds of appeal raised by the appellant.

[2] With respect to the trial judge’s refusal to declare a mistrial following the Crown’s opening address, we are satisfied that the curative instructions given by the trial judge immediately after the Crown opening, and again in his charge, served to remove any possible prejudice to the appellant. This is particularly so when one considers that the improper comment was a single line in a lengthy opening and that the offending portion, which was not repeated, came nine days before the jury’s deliberations. In sum, we see no basis for interfering with the trial judge’s decision to proceed with the trial.

[3] With respect to the s. 10(b) issue, the trial judge found as a fact that the appellant waived his right to counsel after he was told that he was being charged with robbery and wearing a face mask. We think that that finding was open to the trial judge and we see no basis for interfering with it. The appellant gave no evidence to the contrary. Moreover, when given his rights to counsel a third time before providing a videotaped statement, he asked and was permitted to contact counsel. This belies the position, put forward on his behalf, that the appellant may have been under a misapprehension that he was only entitled to one phone call.

[4] Turning to the trial judge’s instructions on the meaning of reasonable doubt, the charge in this case was given several days after the release of Lifchus by the Supreme Court of Canada and we acknowledge that the instructions are not fully in accordance with that decision. That said, when the impugned instructions are considered in the context of the charge as a whole, we believe there is no reasonable likelihood that the jury misapprehended the correct standard of proof. Our reasons for so concluding are three fold: (1) the trial judge instructed the jury often and correctly on the presumption of innocence and he linked those instructions to his instructions on the burden of proof and the meaning of reasonable doubt; (2) apart from the instructions on reasonable doubt, the appellant does not submit that the charge contained any other errors; and (3) most importantly, in convicting the appellant on only some of the offences and acquitting him on others, it is clear to us that the jury fully appreciated the requisite standard of proof required for a conviction. Accordingly, we would not give effect to this ground of appeal.

[5] Finally, we are satisfied that there was ample evidence to support the charges upon which the appellant was convicted. We would therefore not give effect to the submission that the verdicts were unreasonable.

[6] In the result, the appeal from conviction is dismissed.

Signed: “M.J. Moldaver J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”