



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 Hartleibs 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 Powells
    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 jurys 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 witnesss 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 judges 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
    counsels 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 Crowns 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 appellants 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 judges reasons for rejecting the
    appellants 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 judges 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.


