DATE: 20040303

DOCKET: C40047

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. R. F. (Appellant)

BEFORE: MacPHERSON, SIMMONS and CRONK JJ.A.

COUNSEL:

Sarah Loosemore for the appellant

Leslie Paine for the respondent

HEARD AND ENDORSED: February 27, 2004

On appeal from the conviction imposed by Justice A. McFadyen dated April 2, 2003 and the sentence imposed by McFadyen J. on April 22, 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 appeal against conviction must be dismissed with respect to Counts 1 and 2 and with respect to the appellant’s conviction on the charge of possession of cocaine. There was ample evidence to support the trial judge’s finding of wilful blindness concerning Counts 1 and 2 and her inference that the appellant, in fact, was in possession of the cocaine.

[2] In contrast, we are not persuaded that there was an adequate evidentiary foundation to support the appellant’s conviction on Count 3 (re the home theatre/DVD equipment). As the Crown candidly concedes, the evidence in support of Count 3 was weak at best. It was insufficient to ground a conviction based on wilful blindness or recent possession of stolen property.

[3] Accordingly, the conviction appeal is allowed in part and the appellant’s conviction on Count 3 is set aside, together with the associated sentence of 12 months imprisonment.

[4] We are satisfied that the forfeiture order was properly made, in the alternative, under s. 490.1(2) of the Criminal Code. Accordingly, while we grant leave to appeal sentence, the sentence appeal is dismissed.