Court of Appeal for Ontario

Date: 2017-01-10 Docket: C59841

Judges: Simmons, Pardu and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Alex Tarroza Appellant

Counsel

Joseph Wilkinson, for the appellant

Brian Puddington, for the respondent

Hearing and Release

Heard and released orally: October 13, 2016

On appeal from: The conviction entered on November 18, 2014 by Justice Donald J. Halikowski of the Ontario Court of Justice.

Endorsement

[1] The appellant appeals from his conviction for possession of cocaine for the purpose of trafficking.

[2] It is undisputed that the trial judge misapprehended the evidence when he found that police surveillance officers saw Mr. Chronopoulos place a bag in the trunk of the appellant's vehicle on the morning of July 11, 2013.

[3] Based on our review of the trial judge's reasons, he relied on this misapprehension in coming to the conclusion that the appellant was acting in a joint venture with Mr. Chronopoulos and Mr. Gannes to traffick cocaine and knew of the cocaine in his trunk. That this is so is apparent, in particular, from paragraphs 30, 31, 39, 44, and 46 of his reasons. This error, standing alone, requires a new trial.

[4] We do not accept the appellant's submission that the verdict was unreasonable. The appellant relies for this submission on statements by the trial judge that he rejected the appellant's evidence in its entirety and argues that there was therefore no evidence of certain matters essential to the Crown's case. We do not accept this submission.

[5] Read fairly the trial judge's reasons reflect the rejection of the appellant's version of the events at issue and not the appellant's evidence concerning what was essentially uncontroversial background information.

[6] In light of our conclusions concerning the foregoing issues, it is unnecessary that we deal with the other grounds of appeal.

[7] We will however address one other matter. In his reasons for judgment, the trial judge also found the appellant guilty of conspiracy to commit an indictable offence and not guilty of several other offences. All of these charges[1] had previously been withdrawn. After the trial judge delivered his reasons, it was pointed out to him that the conspiracy charge had been withdrawn. He said the finding of guilt on that charge would not form part of the final order. The Information in the appeal book does not include any endorsement of the trial judge's findings or of the sentence that he imposed. Counsel have been unable to locate a final order. Although there is no sentence appeal before us, the trial judge's reasons for sentence disclose that he sentenced the appellant to a concurrent sentence for the withdrawn conspiracy charge. In the circumstances we consider it prudent to make an order that, to the extent necessary, any conviction and sentence for the withdrawn conspiracy charge are set aside.

[8] For the reasons given, the appeal is allowed, the conviction for possession of cocaine for the purpose of trafficking is set aside and a new trial is ordered.

"Janet Simmons J.A."

"G. Pardu J.A."

"B.W. Miller J.A."

Footnote

[1] The conspiracy count in the Information actually charged the appellant with conspiracy to traffick a controlled substance.