DATE: 20041112

DOCKET: C29740

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MOHAMED RAFEEK ALI (Appellant)

BEFORE:

CATZMAN, LASKIN and BLAIR JJ.A.

COUNSEL:

Joseph Di Luca for the appellant

Brian McNeely for the respondent

HEARD & RELEASED ORALLY:

November 10, 2004

On appeal from the conviction of Justice E.B. Minden dated April 15, 1998.

E N D O R S E M E N T

[1] On behalf of the appellant, Mr. Di Luca submits that the trial judge made two errors, namely:

(i) that he applied the wrong legal test in assessing the scope and effect of the contact with the jury by focussing exclusively on whether the interference resulted in actual bias and failing to consider whether the interference was sufficient to raise a reasonable apprehension of bias; and

(ii) that he failed to conduct an inquiry of at least one, if not all, of the jurors with whom the officer had contact.

[2] As to the first ground, a review of the transcript where this issue was considered makes it clear that the trial judge was alive to the requirement to dispel a reasonable apprehension of bias. His instructions to the jurors confirmed this. Accordingly, we would not give effect to this ground of appeal.

[3] With respect to the second ground of appeal, we see no error in principle on the part of the trial judge in exercising his discretion not to examine the juror or jurors in the circumstances, particularly, given the position of defence counsel that nothing untoward had occurred.

[4] Accordingly, the appeal is dismissed.

“M.A. Catzman J.A.”

“John Laskin J.A.”

“R.A. Blair J.A.”