



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lima, 2014 ONCA 155

DATE: 20140227

DOCKET: C52979

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Alberto Lima

Appellant

Robert Sheppard, for the appellant

Alison Wheeler, for the respondent

Heard:  February 25, 2014

On appeal from the conviction entered on February 11,
    2010 and the sentence imposed on February 11, 2010 by Justice Kelly A. Gorman
    of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT


[1]

The appellants sentence appeal is dismissed as abandoned.

[2]

On his conviction appeal, the appellant argues that the trial judge made
    two errors in her jury charge:  first, the use of the word some in her charge
    on s. 21(2); and second, the use of the phrase ought to have known in her
    charge on possession under s. 4(3).

[3]

In our view, the phrase some evidence would not have misled the jury
    in the light of the trial judges repeated instructions both general and
    specifically tailored to the facts of this case, that the Crown must prove the
    crimes against the accused beyond a reasonable doubt.

[4]

The Crown acknowledges that ought to have known is not a basis for liability
    as a principal under s. 4(3).  However, we agree with the Crown that the
    curative proviso applies.  In the light of the photographs alone, the case
    against the appellant on the possession charges was overwhelming.

[5]

The conviction appeal is dismissed.


