



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tarroza, 2017 ONCA 14

DATE: 20170110

DOCKET: C59841

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alex Tarroza

Appellant

Joseph Wilkinson, for the appellant

Brian Puddington, for the respondent

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 appellants vehicle on the morning of July 11, 2013.

[3]

Based on our review of the trial judges 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 appellants submission that the verdict was
    unreasonable.  The appellant relies for this submission on statements by the
    trial judge that he rejected the appellants evidence in its entirety and
    argues that there was therefore no evidence of certain matters essential to the
    Crowns case.  We do not accept this submission.

[5]

Read fairly the trial judges reasons reflect the rejection of the
    appellants version of the events at issue and not the appellants evidence
    concerning what was essentially uncontroversial background information.

[6]

In light of our conclusions concerning the forgoing 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had previously been withdrawn.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    was pointed out to him that the conspiracy charge had been withdrawn.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 judges 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 judges 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.





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


