DATE: 20040622

DOCKET: C40592

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ERROL JONES (Applicant/Appellant)

BEFORE:

CATZMAN, WEILER and MacPHERSON JJ.A.

COUNSEL:

Elizabeth Ann Moore

for the appellant

Beverly J. Wilton

for the respondent

HEARD AND ENDORSED:

June 21, 2004

On appeal from the conviction entered and sentence imposed by Justice Norman Bennett of the Ontario Court of Justice on April 4, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The Crown acknowledges that the trial judge should not have relied on the appellant’s record for previous drug offences in concluding that he was guilty of possession for the purpose of trafficking; and that there was inconsistency between the trial judge’s reasons for conviction and reasons for sentence on the question whether the appellant was a user of crack cocaine.

[2] We agree. We would vacate the appellant’s conviction and substitute for it a conviction for simple possession. We are persuaded that an appropriate sentence for the substituted conviction would be time served and the appellant’s sentence should be amended accordingly.

[3] The appeal is allowed to reflect the disposition indicated in this endorsement. The order imposed under s. 109 of the Criminal Code by the trial judge in this case will be vacated.