COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – KEITH FITCHETT AND DALE FITCHETT (Appellants)
BEFORE: LABROSSE, WEILER and SHARPE JJ.A.
COUNSEL:
Paul Calarco for the appellants
Frank Au for the respondent
HEARD & ENDORSED: December 12, 2006
On appeal from the convictions entered and sentences imposed on December 5, 2005, by Justice Derek T. Hogg of the Ontario Court of Justice.
A P P E A L B O O K E N D O R S E M E N T
1There was a factual basis on which the trial judge could find that the accused had possession for the purpose of trafficking, namely: the quantity of the marijuana, the amount and nature of the cash seized, the scales, the zip-lock bags and the dead plants. That conviction stands.
2In view of trial counsel’s concession, we are not persuaded that the lack of reason provides grounds for appellate interference with Count 7.
3With respect to Counts 4 and 5, we are not satisfied that the only possible verdict on the evidence was one of guilt. As a result the absence of reasons does not permit meaningful appellate review.
4The convictions of Dale Fitchett on Counts 4 and 5 are quashed.
5The sentence appeal on the marijuana charges was contingent on success of the conviction appeal. Except for Counts 4 and 5, the appeal is otherwise dismissed.