DATE: 20050221

DOCKET: C39830

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DAC DUNG TRAN (Appellant)

BEFORE:

WEILER, GOUDGE and GILLESE JJ.A.

COUNSEL:

J. Randall Barrs

for the appellant

Marco Mendicino

for the respondent

HEARD & RELEASED ORALLY:

February 16, 2005

On appeal from the conviction entered on February 20, 2003 and the sentence imposed on March 10, 2003 by Justice Peter Tetley of the Ontario Court of Justice.

E N D O R S E M E N T

[1] On February 20, 2003 the appellant was convicted of production of marijuana, possession of marijuana for the purpose of trafficking, mischief and theft of electricity in the operation of a marijuana grow operation. He was sentenced to a custodial sentence of 90 days intermittent and two years probation. The appellant appeals against conviction and sentence.

The Conviction Appeal

[2] Knowledge and control of the prohibited substance are essential elements of the offence of possession. In oral submissions, the appellant conceded that the trial judge was entitled to find knowledge but argues that the trial judge erred in finding that the appellant had the requisite control.

[3] We disagree. Knowledge and control may be established by proper inference from proven facts. The trial judge articulated the correct legal principles governing proof of possession. He gave as his basis for inferring knowledge the fact that the odour of marijuana was pervasive on entry, the noise from the grow operation made the innocent attendance of the appellant impossible to accept, there was a complete absence of any normal indicia of co-habitation such as furniture, food and pots and pans, and the indicia of drug activity was readily apparent. In short, the trial judge found that the grow operation in the small bungalow was so obvious that it would be impossible to avoid knowledge of its existence once a person crossed the threshold to the bungalow. In that context, the appellant was found to have remained in the house for 37 minutes. Evidence was given that a stay of that duration was consistent with the time spent by people who are paid to monitor and maintain grow operations. On the record, it was open to the trial judge to infer that the appellant remained on the premises to exert control over the marijuana operation.

The Sentence Appeal

[4] The appellant contends that the sentence imposed was excessive given the appellant’s background and employment record and the sentences imposed in similar circumstances.

[5] Given the size and sophistication of the grow operation, the ever-increasing prevalence of residential grow operations and the exceedingly serious risks they bring to the community, in our view, the sentence cannot be said to be demonstrably unfit. We see no basis upon which to interfere.

DISPOSITION

[6] Accordingly, the appeal from conviction is dismissed, leave to appeal from sentence is granted and the appeal from sentence is dismissed.

“K. M. Weiler J.A.”

“S. T. Goudge J.A.”

“E. E. Gillese J.A.”