DATE: 20040621

DOCKET: C39880

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – PETER ANTHONY MCKENZIE (Appellant)

BEFORE: CATZMAN, WEILER and MacPHERSON JJ.A.

COUNSEL: Marie Henein and Jennifer Gleitman for the appellant

Geoffrey Roy for the respondent

HEARD: June 18, 2004

RELEASED ORALLY: June 18, 2004

On appeal from the conviction entered by Justice Harvey Spiegel of the Superior Court of Justice, sitting without a jury, dated September 27, 2000, and the sentence imposed by Justice Spiegel dated October 16, 2000.

E N D O R S E M E N T

Nature of Appeal

[1] The appellant appeals his conviction for trafficking and possession for the purposes of trafficking imposed by the Honourable Mr. Justice H. Spiegel on September 27, 2000 and seeks leave to appeal from his sentence imposed in absentia on October 16, 2000. This appeal was originally an inmate appeal and was adjourned by Rosenberg J.A. to await the transcript.

[2] We called on the Crown to respond to only one of the grounds of appeal. That issue was whether the trial judge erred in admitting the expert evidence of Constable Canepa relating to drug trafficking. While the officer was allowed too much latitude in the giving of his evidence, the core of his testimony on the subject of drug trafficking was admissible. In relation to the disputed aspect of Constable Canepa’s evidence respecting the roles the various persons would play in a three person transaction, the trial judge referred to the evidence and noted that it contained an element of speculation. The trial judge was aware that Constable Canepa’s expertise was based on knowledge and experience and of its limited use. We are not persuaded that we should interfere with his conclusion. We see no merit therefore in the argument that the verdict was unreasonable. In addition we do not agree that the trial judge could not consider the evidence relating to count one when he turned to count two. See R. v. Thompson, [2003] O.J. No. 441 (Ont. C.A.). Accordingly, the appeal against conviction is dismissed.

[3] With respect to sentence, the sparseness of the reasons does not prevent appellate review having regard to the trial judge’s discussion with the Crown that led to his disposition. The fact that the appellant had absconded and was not present at the time of sentencing accounted for the trial judge’s failure to render more extensive reasons as to the disposition he made. In any event the sentence was a fit and proper sentence. Accordingly, while we would grant leave to appeal sentence the appeal from sentence is also dismissed.

“M.A. Catzman J.A.”

“K.M. Weiler J.A.”

“J.C. MacPherson J.A.”