DATE: 20040202

DOCKET: C39055

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – QUOC PHAM (Appellant)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Victor Giourgas for the appellant

Mary-Ellen Hurman for the respondent

HEARD:

January 30, 2004

On appeal from the conviction and sentence imposed by Justice Brian Trafford of the Superior Court of Justice dated June 26 and June 28, 2002.

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

[1] We are satisfied that the trial judge’s finding that the appellant understood his s. 10(b) right at all material times is amply supported by the evidence. In the end the end the issue was one of credibility and the trial judge rejected the appellant’s evidence that he did not understand. The trial judge’s failure to reconcile the evidence of Higgins that, at the station, the notion of “free lawyer” had to be explained does not, in our view, undermine the trial judge’s findings in a fair view of the entire record.

[2] Given the serious nature of this assault, we are not persuaded that the sentence was demonstrably unfit so as to justify the intervention of this court.

[3] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence granted but the sentence appeal is dismissed.