DATE: 20061214

DOCKET: C44592/C44593

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – KEITH FITCHETT AND DALE FITCHETT (Appellants)

BEFORE: LABROSSE, WEILER and SHARPE JJ.A.

COUNSEL:

Paul Calarco for the appellants

Frank Au for the respondent

HEARD & ENDORSED: December 12, 2006

On appeal from the convictions entered and sentences imposed on December 5, 2005, by Justice Derek T. Hogg 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] There was a factual basis on which the trial judge could find that the accused had possession for the purpose of trafficking, namely: the quantity of the marijuana, the amount and nature of the cash seized, the scales, the zip-lock bags and the dead plants. That conviction stands.

[2] In view of trial counsel’s concession, we are not persuaded that the lack of reason provides grounds for appellate interference with Count 7.

[3] With respect to Counts 4 and 5, we are not satisfied that the only possible verdict on the evidence was one of guilt. As a result the absence of reasons does not permit meaningful appellate review.

[4] The convictions of Dale Fitchett on Counts 4 and 5 are quashed.

[5] The sentence appeal on the marijuana charges was contingent on success of the conviction appeal. Except for Counts 4 and 5, the appeal is otherwise dismissed.