DATE: 20040813

DOCKET: C40562

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – TUAN VAN LE (Respondent)

BEFORE:

ROSENBERG, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Croft Michaelson

for the appellant

Craig Parry

for the respondent

HEARD & ENDORSED:

August 11, 2004

On appeal from acquittal by Justice D. J. Gordon of the Superior Court of Justice dated August 7, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the trial judge erred in excluding the evidence of the light bulb and fertilizer. These items were of a type used in marihuana cultivation and in context were probative of the issue of knowledge. Part of that context was the respondent’s possession of keys to the basement where the marihuana was growing and that he had just spent twenty minutes in the residence. The trial judge’s error was in holding that there has to be a specific connection to this particular operation in the sense that these items had been used in this operation and, in effect, holding that these individual pieces of evidence had to bear the entire burden of proof, that is, that on their own they had to prove the offence. The fact that there could be alternative explanations for the appellant’s possession of these items went to weight not admissibility.

[2] Taken with the other evidence, had the trial judge admitted the evidence and directed himself as to its probative value the verdict would not necessarily have been the same.

[3] Accordingly, the appeal is allowed. The acquittal set aside and a new trial ordered.