DATE: 20041203

DOCKET: C38554

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DENNIS PIZZI (Appellant)

BEFORE:

CRONK, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Keith E. Wright

for the appellant

M. David Lepofsky

for the respondent

HEARD & ENDORSED:

November 30, 2004

On appeal from the convictions entered by Justice Donald S. Ferguson of the Superior Court of Justice dated January 16, 2002.

E N D O R S E M E N T

[1] The appellant raises two issues on appeal.

[2] First, he argues that the trial judge erred in failing to consider and give sufficient weight to evidence adduced by the Crown from the appellant that the appellant had told a police officer, while driving to the police station, that he had waved a cell phone at Mr. Massicotte.

[3] Second, he submits that the trial judge failed properly to apply the requirement of proof beyond a reasonable doubt in light of the potentially exculpatory evidence of the witness, Anderson.

[4] We do not accept these submissions.

[5] We did not find it necessary to call on the Crown with respect to ground number one. Defence counsel at trial effectively took the appellant’s statement off the table by telling the trial judge he should disregard the Crown’s question and the answer given. Tactically, this decision effectively muted the Crown threat of calling reply evidence to contradict the accused’s testimony. It is too late on appeal for the appellant to resile from that position.

[6] With respect to the second ground, the appellant submitted that the trial judge failed to instruct himself on the principles of R. v. W. (D). (1991), 63 C.C.C. (3d) 397 regarding Anderson’s evidence. We are satisfied that the trial judge correctly analysed the defence evidence and correctly applied the standard of proof beyond a reasonable doubt. It was obvious that the evidence of Anderson, and the defence evidence taken as a whole, did not raise a reasonable doubt as far as the trial judge was concerned, and we see no error in his analysis.

[7] The appeal is therefore dismissed.

“E.A. Cronk J.A.”

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”