COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gebremicael, 2012 ONCA 68

DATE: 20120201

DOCKET: C52132

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Noad Gebremicael

Appellant

Brigitte Gratl, for the appellant

Lucas Price, for the respondent

Heard and released orally: January 30, 2012

On appeal from the conviction entered on December 11, 2009 and the sentence imposed on April 22, 2010 by Justice Roland J. Haines of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Following a trial before a judge and jury, the appellant was convicted of trafficking in a controlled substance. He was sentenced to a period of incarceration of 14 months (including 4 months pre-trial custody credited on a two for one basis for 8 months) plus 2 years probation. He appeals both his conviction and sentence.

The conviction appeal

(a) Alleged Inconsistent verdicts

[2] The appellant argues that inconsistencies in the description of the alleged cocaine in count two led to an acquittal and that the same inconsistencies were present in count one. Constable Powell testified that the contents he observed on January 4th (count two) were the same as the contents he observed on January 3rd (count one). The appellant submits that Constable Powell was saying that the substance he received on both dates was in hard form, whereas Constable Hartleib’s description of the contents received was powdery. The appellant therefore argues that inasmuch as the jury acquitted on count two, the conviction on count one was unreasonable in the face of the inconsistent description of the cocaine.

[3] In our opinion, it was open to the jury to interpret Constable Powell’s answer as a reference to the nature of the two substances, as opposed to their appearance and conclude that he was simply testifying to his belief that both substances were cocaine. The jury’s verdicts were not inconsistent. Even if there was a conflict in the evidence as to whether the cocaine was in powder or hard form, this would not render the verdicts inconsistent in law. A jury is entitled to accept some, part or none of a witness’s evidence.

(b) Alleged Failure to instruct on a substance held out to be cocaine

[4] The appellant was not charged with this offence. He was charged with trafficking in cocaine. The trial judge told the jury that in order to convict they had to be satisfied that the substance held out by the appellant was cocaine. There is no merit to this ground of appeal.

(c) Whether the trial judge’s instruction on aiding and abetting was insufficient

[5] The appellant submits that the trial judge instructed the jury that as long as the accused aids in the transaction, he is guilty of the charge of aiding and abetting. The appellant submits that the trial judge ought to have made clear to the jury that an accused must be found to aid the seller not the purchaser.

[6] While it would have been better if the trial judge had acceded to counsel’s request to specifically charge the jury as requested, in the circumstances the charge was adequate. The trial judge told the jury in order to find the appellant guilty they must find he aided in the commission of “the offence”. The offence charged was trafficking in cocaine. The trial judge defined trafficking in the context of this case as “to sell something to someone”. In his charge on aiding, the trial judge told the jury that, “It is the Crown’s position that Mr. Gebremicael is guilty on count four, that relates to the events that took place on February 1, 2008 as an aider to Mr. Wells who sold cocaine to Detective Constable Powell”. Thus, the jury knew that in order to find the appellant guilty of trafficking he must be aiding the seller. In any event, there is no air of reality to the defence. Before the jury, the appellant did not argue that he was only aiding the purchaser and the evidence amply supported the finding that he was aiding the seller.

(d) Whether the trial judge erred in his ruling that the appellant was not entrapped

[7] The appellant’s submission that the trial judge erred in failing to find that the appellant was randomly virtue tested is without merit. The evidence of Constable Powell is that he attended Hush Fashions because it had been identified as a source of cocaine. This evidence was unchallenged and provided the police with a reasonable basis for approaching the appellant, the person who was running the business. The trial judge’s reasons for rejecting the appellant’s argument that he was induced into trafficking cocaine disclose no error.

[8] Accordingly the appeal as to conviction is dismissed.

The sentence appeal

[9] The sentence was fit and well within the range for such offences. There is no error in the trial judge’s refusal to give a conditional sentence.

[10] Accordingly, while leave to appeal sentence is granted, the appeal from sentence is dismissed.

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.

“R.A. Blair J.A.’