COURT OF APPEAL FOR ONTARIO

DATE: 2006-10-16

DOCKET: C40798

RE: Her Majesty the Queen (Respondent) – and – Raymond MacLellan (Applicant(Appellant))

BEFORE: ROSENBERG, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Victor Giourgas and Anida Chiodo, for the appellant

Moiz Rahman, for the respondent

HEARD & RELEASED ORALLY: October 12, 2006

On appeal from conviction by Justice Sandra Chapnik of the Superior Court of Justice, sitting with a jury, dated April 8, 2003 and sentence dated June 16, 2003.

E N D O R S E M E N T

[1] There are two fundamental errors of law in this case. First, the appellant having been placed in the jury’s charge on both counts, the trial judge should have taken the verdict from the jury on both counts. Second, the trial judge failed to direct the jury on the included offence of simple possession.

[2] Given the confusion as to the impact of the guilty plea we cannot be certain that this error could not have affected the verdict. As the Supreme Court of Canada said in R. v. Haughton (1994), 93 CCC (3d) 99 at 107:

In cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact that it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable.

[3] We think that reasoning applies in this case.

[4] The Crown does not seek a new trial on the full offence and the appellant concedes that he is at least guilty of simple possession.

[5] Accordingly, the appeal from conviction on Count # 1 is dismissed and a conviction for the included offence of simple possession is substituted. The sentence on the charge of simple possession will be time served. The appeal from conviction on Count # 2 is allowed and the conviction quashed.

Signed: “M. Rosenberg J.A.” “Robert P. Armstrong J.A.” “R. A. Blair J.A.”