DATE: 20040225
DOCKET: C38187
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – ANTHONY WONG (Appellant)
BEFORE: DOHERTY, LASKIN and GILLESE JJ.A.
COUNSEL: Benson Cowan for the appellant
Michael V. O'Malley for the respondent
HEARD: February 12, 2004
RELEASED ORALLY: February 12, 2004
On appeal from the conviction entered by Justice Donald R. Cameron of the Superior Court of Justice, sitting with a jury, dated September 21, 2001.
E N D O R S E M E N T
[1] The appellant was charged with possession of cocaine for the purpose of trafficking and trafficking in cocaine. Both charges arose out of the same incident. The appellant was acquitted of the possession charge but convicted of the trafficking charge.
[2] The appellant appeals his conviction on two grounds:
The trial judge erred in charging the jury on party liability; and
The Crown unfairly cross‑examined him.
First ground
[2] In answer to a question from the jury suggesting the appellant might have been a middleman, and at the suggestion of his counsel, the trial judge charged the jury on party liability under s. 21 of the Criminal Code. We agree with the appellant that whether he was a middleman was irrelevant and the jury should have been so told. The Crown’s case was based on the appellant having made an offer, regardless of his role.
[3] Even accepting, however, that the instruction on s. 21 amounted to an error of law, it occasioned no substantial wrong. To convict, the jury still had to find the appellant made an offer to sell. And the jury was properly told three times that to convict the appellant of trafficking it had to find the appellant had made an offer. We have to assume that in convicting the appellant, the jury found that the Crown had proved the appellant’s offer beyond a reasonable doubt.
Second Ground
[4] The appellant submits that the Crown unfairly cross‑examined him in two ways: first, by asking several times whether he thought the police were lying; and, second, by suggesting that he had breached his bail conditions, thus introducing bad character evidence although the appellant did not put his character in issue.
[5] The questions directed to whether the police lied must be viewed in context. The defence’s theory was that the police fabricated their evidence. In this context, the questions, though unnecessary, were not prejudicial.
[6] On the cross‑examination of the appellant’s breach of bail we consider that the questions were proper. Whether the appellant was being truthful about where he lived and whether he complied with a court order were relevant to his credibility. Defence counsel did not object to these questions. Moreover, the trial judge gave an appropriate limiting instruction.
[7] For these reasons the conviction appeal is dismissed.
“John Laskin J.A.”
“Doherty J.A.”
“E.E. Gillese J.A.”