Court of Appeal for Ontario

Citation: R. v. Danis, 2008 ONCA 417

Date: 20080528

Docket: C46975

Before: WEILER, BORINS and MACFARLAND JJ.A.

Between:

HER MAJESTY THE QUEEN Respondent

and

RICHARD HASH DANIS Appellant

Counsel: Joseph Di Luca and Andrea McEwan for the appellant Xenia Proestos for the respondent

Heard and released orally: May 16, 2008

On appeal from the conviction entered on January 25, 2006, and the sentence imposed on January 24, 2007, by Justice Norman M. Karam of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Following a trial, the appellant was found guilty of one count of trafficking in a substance held out to be cocaine and sentenced to 38 months imprisonment in addition to credit of four months for pre-trial custody. The appellant appeals from both his conviction and sentence.

[2] With respect to conviction the appellant submits that the trial judge erred in assessing the evidence of the key Crown witness, Chantal Demers, in that he referred to her as an independent witness, relied on her demeanor in court, and did not give her evidence the scrutiny it deserved in light of her admission that that she lied about half the time depending on to whom she was talking. The position of the defence at trial was that Ms. Demers was lying in order to protect her friend Mr. Polsky who had delivered the substance which turned out to be morphine and resulted in the victim becoming comatose and suffering permanent mental and physical impairment.

[3] The evidence of Ms. Demers was not contradicted by any defence evidence. A critical part of her evidence, that the victim had called the appellant to obtain cocaine, was supported by objective evidence, namely, cell phone records. The trial judge’s comment that Ms. Demers had distanced herself is supported by the fact that, following these tragic events, she moved from Sturgeon Falls to Barrie. The suggestion that Ms. Demers was lying to protect her friend Mr. Polsky is undercut by the fact that prior to trial Mr. Polsky had pled guilty to one count of possession of a narcotic and been sentenced. Accordingly, we are not persuaded that the trial judge erred in his assessment of Ms. Demers’ evidence and in convicting the appellant. The appeal as to conviction is dismissed.

[4] As to sentence, counsel submits that the trial judge erred in principle in not giving appropriate effect to the appellant’s house arrest while he was on bail for two years awaiting trial and in offending the principle of parity in sentencing the appellant to a sentence considerably longer than that of Mr. Polsky who effected the actual sale. Mr. Polsky’s sentence reflects the fact that from the outset he admitted his involvement in the transaction and thereafter continued to cooperate with the police in the investigation. His cooperation is no doubt reflected in the Court’s acceptance of a plea of guilty to a lesser offence. These factors and the fact that Mr. Polsky is apparently a first offender no doubt gave rise to the discounted sentence he was given. The reasons of the trial judge do not reflect any consideration of the bail conditions and although this may have constituted an error in principle, in the end, having regard to the appellant’s extensive criminal record, it is immaterial. In our view, the sentence is fit. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.

“K.M. Weiler J.A.”

“S. Borins J.A.”

“J. MacFarland J.A.”