CITATION: R. v. Nguyen, 2007 ONCA 222
DATE: 20070328
DOCKET: C44053
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – GIANG NGUYEN (Appellant)
BEFORE:
SIMMONS, MACFARLAND AND ROULEAU JJA.
COUNSEL:
Paula Locke
for the appellant
Kevin Wilson
for the respondent
HEARD & RELEASED ORALLY:
March 29, 2006
On appeal from the conviction entered by Justice Tamarin M. Dunnet of the Superior Court of Justice on April 15, 2005 and from the sentence imposed on April 20, 2005.
E N D O R S E M E N T
[1] The appellant was convicted by Dunnet J. of trafficking in heroin on April 15, 2005 and was sentenced to a term of imprisonment of 6 years on April 20, 2005.
[2] The appellant appeals his conviction and seeks leave to appeal the sentence imposed.
[3] Against conviction the appellant raises three grounds:
the trial judge provided inadequate reasons for rejecting the evidence of Le, the only defence witness;
the trial judge shifted the onus to the defence to prove a motive to lie on the part of the investigating officers;
the trial judge imposed a more lenient standard of proof upon the Crown evidence.
[4] As to the first point, the trial judge gave two bases for the rejection of Le’s evidence at p. 344 of her reasons: his demeanour and the fact that there was no semblance of reality to his testimony. While it would have been preferable for the trial judge to expand on these at this point in her reasons, we are satisfied that these findings are supported and understood when her reasons and the record are considered in their entirety.
[5] As to the second ground, it was Mr. Le who first suggested a significant portion of the evidence of the police witnesses was made up. The trial judge properly dealt with this in her reasons. We would not give effect to this ground of appeal.
[6] As to the third ground, the “inconsistencies” in the police officer’s evidence, as they were characterized by the appellant, were fairly dealt with by the trial judge and we see no error.
[7] As to the sentence, Ms. Locke fairly acknowledges that although high, the sentence is within the range. On our view of the record, it was open to the trial judge to make the findings she did in respect of the aggravating circumstances.
[8] The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.
“Janet Simmons J.A.”
“J. MacFarland J.A.”
“Paul Rouleau J.A.”