DATE: 20051118

DOCKET: C43498

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – RICHARD ROY (Appellant)

BEFORE: BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

George Florentis for the appellant

Melissa Ragsdale for the respondent

HEARD & ENDORSED: November 15, 2005

On appeal from the conviction entered and the sentence imposed on January 20, 2005 by Justice William F. Fitzgerald 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

[1] The trial judge did not err in dismissing the motion for a directed verdict as there was sufficient evidence to meet the usual test. As for the appellant’s conviction, the verdict was not unreasonable as there was sufficient evidence on which the trial judge could infer constructive possession of the weapon and the marijuana. Therefore, the appeal from conviction is dismissed.

[2] As for the sentence appeal, the trial judge erred in being of the opinion that he could not reduce the mandatory minimum sentence by considering the time spent (two and a half months) in pre‑trial custody. As the appellant has only five days to serve on this sentence, we would grant leave to appeal sentence and reduce the sentence to time served.