Court of Appeal for Ontario

Date: 2003-03-18 Docket: C38102

Re: Her Majesty the Queen (Respondent) – and – Jimmy Raymond Coates (Appellant)

Before: McMurtry C.J.O., Morden and Cronk JJ.A.

Counsel: Gregory Lafontaine for the appellant Benita Wassenaar for the respondent

Heard: March 10, 2003

On appeal from the conviction entered by Justice William A. Jenkins of the Superior Court of Justice sitting with a jury on January 29, 2002 and the sentence imposed on March 22, 2002.

Endorsement

[1] Although the appellant raised several grounds of appeal from conviction in his factum, Mr. Lafontaine made oral submissions on one ground only, that relating to the absence of a limiting instruction to the jury respecting the use of the evidence of the appellant’s association with the Hell’s Angels motorcycle gang. At the conclusion of his argument, Mr. Lafontaine said that he was content to confine the appeal from conviction to that ground only. We have considered the other grounds set forth in the factum and think that he was right to take this position.

[2] The trial judge gave neither a positive use instruction nor a limiting use instruction respecting the evidence of the appellant’s association with the Hell’s Angels. It is common ground that this evidence and, at least, some of the evidence respecting the Hell’s Angels, was properly admitted at the trial. Indeed, it was essential to understanding the narrative of the relevant events relating to the charges and, further, it was an important part of the Crown’s case to prove the charge of extortion.

[3] The appellant accepts that the Crown could properly submit to the jury that the appellant, in demanding payment of the money sought, intended to extort the payment by exploiting the effect on the complainant of his association with the Hell’s Angels and his wearing of a Hell’s Angels jacket – together with the other evidence, which included the appellant’s attendance on two occasions at the complainant’s place of business and his statements to the complainant that he knew where the complainant lived, and that he had a wife and a daughter.

[4] Accepting the appellant’s submission that the trial judge should have instructed the jury that they could not infer from the appellant’s association with the motorcycle gang that he was a person of bad character and, from that, conclude that he must be guilty of the offences charged, we are satisfied that the failure to give the instruction, in the circumstances of this case, occasioned no substantial wrong or miscarriage of justice. The Crown’s overall case that the appellant’s actions amounted to extortion and nothing else was a particularly strong one. The appellant did not testify. The appellant’s trial counsel’s lack of a request for such an instruction, and the failure to object to its absence in the charge, can well be understood as being a deliberate tactical decision on his part.

[5] With respect to the sentence appeal, we are of the view that, in the circumstances of this case, the sentence of four years imprisonment was within the range of a fit sentence. We note that it was one year more than the sentence proposed by the appellant’s counsel.

[6] The appeal from conviction is dismissed. Leave to appeal sentence is granted but this appeal is dismissed.

“R.R. McMurtry C.J.O.”

“J.W. Morden J.A.”

“E.A. Cronk J.A.”