DATE: 20050318

DOCKET: C41605

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – SALVATORE (SAM) CIRILLO (Appellant)

BEFORE:

GOUDGE, FELDMAN and JURIANSZ JJ.A.

COUNSEL:

Neil R. Jones for the appellant

Croft Michaelson for the respondent

HEARD & RELEASED ORALLY:

March 11, 2005

On appeal from the conviction of Justice David S. Crane of the Superior Court of Justice dated January 27, 2004.

E N D O R S E M E N T

[1] The appellant pleaded guilty to possession of a small amount of cocaine and was found guilty, by a jury, of trafficking in cocaine.

[2] Aside from his guilty plea, the appellant testified, in chief, that he used cocaine with his alleged co-venturer on other occasions. The appellant attacks the trial judge's instruction that the appellant’s evidence that he was a cocaine user could be used as one factor of many factors in assessing his credibility. Defence counsel at trial conceded that such an instruction could be given. The judge went on to immediately caution the jury against propensity reasoning and that they should not conclude the appellant was guilty of the trafficking offence because he was a drug user. Given, that the appellant introduced the evidence of his prior use in chief, the trial judge did not err in telling the jury they could use it in assessing his credibility.

[3] There was no error in the trial judge’s comment that the appellant, as a user, would know the substance cocaine. This was relevant because the Crown had to establish that the appellant knew the substance in the packages was cocaine. Of course, had the jury accepted or had a reasonable doubt about the appellant’s evidence that he did not see the content of the packages, this instruction becomes irrelevant. We see no merit in this ground of appeal.

[4] The appellant argues that the instruction regarding the second step of the Carter analysis was confusing and unbalanced. The trial judge did remind the jury that they should consider all the evidence except the co-venturer’s statements, and specifically told them they should consider the appellant’s evidence on the second step of the Carter analysis, but did not say more than that. It would have been better had the trial judge reviewed the defence evidence that was difficultly admissible in the same way he reviewed the Crown’s evidence on this issue. However, he elsewhere reviewed the defence’s position and evidence in detail.

[5] Defence counsel at trial did not object to the charge. While this was not a model charge, looking at the charge as a whole, it was sufficient to ensure the jury appreciated the defence’s evidence and position. We would not give effect to this ground of appeal.

[6] The appeal is dismissed.

“S.T. Goudge J.A.”

“K.N. Feldman J.A.”

“R.G. Juriansz J.A.”