DATE: 20041027

DOCKET: C35866

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – COURTNEY VINCENT (Appellant)

BEFORE: MACPHERSON, SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Daniel Stein for the appellant Steve Coroza for the respondent

HEARD: October 26, 2004

RELEASED ORALLY: October 26, 2004

On appeal from the convictions imposed by Justice Susan G. Himel of the Superior Court of Justice dated May 19, 2000.

E N D O R S E M E N T

[1] The trial judge, in her reasons for dismissing the appellant’s application under s. 8 and s. 9 of the Charter, recognized that defence counsel’s cross-examination demonstrated some inconsistencies in the testimony of the police witnesses. It was up to her to weigh those inconsistencies. Treating the testimony of Constable Swackhammer at the preliminary hearing as admissible for the truth of its contents at trial, it is clear that the trial judge preferred the testimony of Constable Subotka as to what his location was.

[2] It was evident the trial judge did not accept the testimony of the appellant, and accepted Constable Subotka’s testimony that the man he saw appear in the laneway was the same man he saw lean out of the second floor apartment and throw several objects in front of the building that Sergeant Thorne picked up and reported to appear to be crack cocaine. It was at this point that Constable Subotka placed the appellant under arrest.

[1] The issue before the trial judge was not whether she accepted Constable Subltka’s testimony on a standard of beyond a reasonable doubt.

[2] The trial judge applied the proper legal principles to the facts as she found them and correctly found that there was no violation of the appellant’s s. 8 and s. 9 rights. Her reasons were more than adequate to inform the appellant why his Charter application was dismissed.

[3] The appellant does not argue that the trial judge erred in deciding not to declare a mistrial. Defence counsel at trial took the position that it was not feasible or desirable for the trial judge to conduct an inquiry.

[4] The trial judge found that the sound made by the juror, apparently in reaction to defence counsel’s cross-examination of a police witness, was no different than a person nodding, shaking his head or rolling his eyes during the course of the trial. She observed that while such behavior is not to be encouraged, it does happen.

[5] Her mid trial instructions reminding jurors of the importance of not expressing their views until the end of the trial was the suitable way of handling the occurrence, particularly in combination with the more pointed instruction given during her main charge.

[6] The appeal is dismissed.

“J.C. MacPherson J.A.”

“J.M. Simmons J.A.”

“R.G. Juriansz J.A.”