DATE: 20040408

DOCKET: C37377

COURT OF APPEAL FOR ONTARIO

CHARRON, ARMSTRONG and BLAIR JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Robert W. Hubbard

for the respondent

Respondent

• and -

BAO NGOC VU

John M. Whelton

for the appellant

Appellant

Heard: April 5, 2004

Released orally: April 5, 2004

On appeal from the conviction entered on October 1, 2001 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with a jury, and from the sentence imposed by Justice Nordheimer on November 7, 2001.

BY THE COURT:

[1] Following a joint trial before a judge and jury, the appellant Bao Ngoc Vu and his co‑defendant Giang Long Hoang were convicted of trafficking in heroin. Vu appeals his conviction, alleging that the trial judge’s charge to the jury erroneously conflated his defence with that of his co-defendant, Giang Long Hoang.

[2] The facts can be briefly stated as follows. On April 2, 1998, the police arrested Quy Dao for selling heroin to an undercover officer. Up until that date, Dao had sold heroin to an undercover officer on three prior occasions. On April 2, the police observed Dao enter a restaurant with the co‑accused Hoang. Dao remained at the front while Hoang walked to the back of the restaurant and joined the appellant Vu. According to the police, the appellant passed a small, white, bag-like object across the table to Hoang who picked it up and took it to Dao. Dao left the restaurant and went to the undercover officer’s van and gave him a substance that turned out to be heroin. Dao was thereupon arrested as well as Vu and Hoang. The appellant was found in possession of scales upon his arrest.

[3] At trial, the appellant’s primary defence was that the officer could not have observed him passing a bag to Hoang because the officer was too far away and his view would have been obstructed. The appellant also relied on inconsistencies in the Crown witnesses’ testimony and the failure to produce certain items of evidence in support of his contention that the Crown had failed to prove that he was the source of the heroin. Alternatively, counsel for the appellant suggested to the jury that Hoang alone could have been the source of the heroin.

[4] Hoang joined the appellant in his primary defence that the officer, because of his location, could not have observed the exchange of drugs inside the restaurant as contended. Counsel for Hoang also relied on certain weaknesses in the Crown’s case in support of his defence. Alternatively, counsel for Hoang suggested to the jury that, if they believed that Vu passed a package to Hoang, this was done in such a nonchalant manner that they should be left with a doubt as to Hoang’s knowledge of the contents of that package.

[5] The only issue on appeal is whether the trial judge erred in the jury charge in the manner that he presented Vu’s theory of the case. The appellant contends that the co-defendants led antagonistic defences at trial, with each attempting to incriminate the other. He argues that, in the circumstances, the trial judge did not adequately distinguish the positions of the two defendants so as to make it clear that the jury could find one accused guilty but not the other. This argument was also made at trial. At the conclusion of the trial judge’s initial charge to the jury, counsel for each co-defendant requested that the judge clarify his charge on this point. All parties agreed on what additional instructions should be given and the jury was instructed accordingly. No further objection was made to the recharge. The appellant now contends that these additional instructions were inadequate.

[6] We are not persuaded by the appellant’s position before this court. In our view, the respective defences advanced by the two co-defendants were not at odds with each other but, rather, in their main thrust, joint. In his main charge, the trial judge repeatedly instructed the jury on the need to consider each accused separately. Where he referred to both defence theories jointly, it was in respect to those aspects of the defence that had been put forth in a joint fashion by both defendants. While his charge may have put the alternative position of the defence more clearly, this was the subject-matter of the objection to the charge and the matter was clarified in the recharge in a form agreed upon by counsel. When viewed in context, it is our view that the jury could not have failed to appreciate the appellant’s defence. This case was not complex and the defence was a simple one. For these reasons, the appeal against conviction is dismissed.

[7] The appellant also appealed against sentence. However, he made no submissions in his factum. The application for leave to appeal the sentence is dismissed.

Released: APR 08 2004 Signed: “Louise Charron J.A.”

LC “Robert P. Armstrong J.A.”

“R.A. Blair J.A.”