DATE: 20060118

DOCKET: C43521

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JASON ARTHUR D’SILVA (Appellant)

BEFORE: DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL: Jerome Bergart for the appellant Randy Schwartz for the respondent

HEARD: January 12, 2006

RELEASED ORALLY: January 12, 2006

On appeal from the conviction entered by Justice B. Smith of the Superior Court of Justice, sitting with a jury, dated September 24, 2004 and the sentence imposed dated May 9, 2005.

E N D O R S E M E N T

[1] The appellant relied on 4 principal grounds in oral argument.

Voluntariness:

[2] We were not persuaded that the trial judge was required to hold a voir dire regarding the appellant’s statement to the police in the circumstances of this case.

[3] The trial judge did explore the issue with the appellant, and though it may be said he could have explained voluntariness more fulsomely, the appellant indicated clearly that he made the statement voluntarily and his concerns were the accuracy of the transcript and the amount that the interviewing officer spoke on the tape.

[4] The record, including the transcript of the statement, gives no reason to doubt the voluntariness of the statement.

[5] It is worth noting a more complete explanation of the concept of voluntariness had been given to the appellant at the pretrial less than a month earlier.

Search issues:

[6] The trial judge inquired about the concerns of the appellant regarding the warrantless search and the information to obtain the subsequent search warrant.

[7] At the end of the discussion, all parties were satisfied how the information to obtain the search warrant had been acquired by the police. It was equally clear there could be no reasonable expectation of privacy in respect of the information gathered during the warrantless search but for the identification number obtained from an inner compartment of one of the jet skis. However, there was no prejudice to the appellant as the police did not rely on that information to obtain the warrant.

[8] There was, therefore, no need for the judge to make any further inquiry into a potential breach of s. 8 of the Charter.

Interference of the trial judge:

[9] The appellant submitted that the trial judge’s interventions, especially during the cross-examination of the appellant, rendered the trial unfair.

[10] The examples counsel pointed out did not persuade us the trial judge did any more than clarify the appellant’s evidence for the jury.

[11] The trial judge’s interventions did not undermine the fairness, or the appearance of fairness, of the trial.

Charge re recent possession:

[12] The evidence in the case made the doctrine of recent possession applicable.

[13] While it would have been preferable to avoid the use of the phrase “presumption of fact”, we do not agree its use in this case misled the jury. The charge read as a whole made it clear to the jury the inference the appellant knew the goods were stolen was permissive and not mandatory and that if they considered that the appellant’s explanation may be true they must find him not guilty.

The “Mr. Robertson” question:

[14] The lynchpin of the defence was that a Mr. Robertson provided the goods to the appellant as collateral for a debt. Mr. Robertson was not called as a witness.

[15] We are of the view the trial judge fairly and correctly answered the jury’s question “Where is Mr. Robertson?” by explaining that it was up to the parties to decide what ever witnesses they would call and there was no evidence as to where Mr. Robertson was. The judge properly told the jury it had to decide the case upon the information it had.

Sentence:

[16] We were not persuaded the imposition of a conditional sentence reflects any error in principle.

[17] The appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”