R. v. Lima
The use of the word 'some' in the s.21(2) charge did not mislead the jury given the trial judge's clear and repeated instructions that guilt must be proven beyond a reasonable doubt; although the phrase 'ought to have known' was incorrect as a basis for principal liability under s.4(3), any error was harmless...
Source-derived case information.
- Citation
- 2014 ONCA 155
- Parties
- Respondent: Her Majesty the Queen; Appellant: Jose Alberto Lima
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 March 2014
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence (court of Appeal)
- Outcome
- Sentence appeal dismissed as abandoned; conviction appeal dismissed.
- Legal Topics
- Jury Instructions, Possession, Section 21(2), Section 4(3), Curative Proviso, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Jose Alberto Lima
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence (court of Appeal)
Legal Issues
- 1 Whether the trial judge's use of the word 'some' in the jury charge on s.21(2) misled the jury
- 2 Whether the trial judge's use of the phrase 'ought to have known' in the jury charge on possession under s.4(3) constituted error affecting liability as a principal
- 3 Whether any error was cured by the curative proviso given the strength of the evidence
Ratio Decidendi
The use of the word 'some' in the s.21(2) charge did not mislead the jury given the trial judge's clear and repeated instructions that guilt must be proven beyond a reasonable doubt; although the phrase 'ought to have known' was incorrect as a basis for principal liability under s.4(3), any error was harmless because the curative proviso applies — the photographic evidence alone overwhelmingly supported the possession convictions — and therefore the convictions must stand.
Court Disposition
Sentence appeal dismissed as abandoned; conviction appeal dismissed.
Orders
- Sentence appeal dismissed as abandoned.
- Conviction appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Lima Collection Decisions of the Court of Appeal Date 2014-03-03 Neutral citation 2014 ONCA 155 Docket numbers C52979 Judges Laskin, John Ivan; Juriansz, Russell G.; Watt, David Subject Criminal Decision Content 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 appellant’s 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 judge’s 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.