CITATION: R. v. Nguyen, 2007 ONCA 24

DATE: 20070118

DOCKET: C43887

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- THI NGOC MAI NGUYEN and DINH THANG VU (Appellants)

BEFORE:

LABROSSE, CRONK and ARMSTRONG JJ.A.

COUNSEL:

Najma Jamaldin

for the appellants

Bradley Reitz

for the respondent

HEARD & RELEASED ORALLY:

January 17, 2007

On appeal from convictions entered on May 9, 2005, and the sentences imposed on June 6, 2005, by Justice Robert Del Frate of the Superior Court of Justice, without a jury.

E N D O R S E M E N T

[1] The appellants were convicted of production and possession of marijuana for the purpose of trafficking. They were sentenced to thirteen months imprisonment. They appealed the convictions and the sentences imposed. No one testified for the defence.

[2] The evidence against the appellants was gathered pursuant to a search warrant.

[3] While the Crown concedes that the information to obtain the warrant made reference to uncompelling tips from informers, the basis of the warrant depended not on those tips but on subsequent police investigation. The house exhibited many of the hallmarks of an indoor marijuana grow operation – a powerful smell of marijuana, signs of heat loss, increased electricity consumption and windows all covered with curtains or blinds.

[4] The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house.

[5] In our view, the record does not support the assertion that racial profiling occurred in this case. The conclusion of the trial judge that the use of the terms “Asian” and “Vietnamese” in the information to obtain was for the purpose of identifying the residents and to corroborate information received from the informer is well founded.

[6] The evidence of a strong smell of marijuana, the absence of normal signs of habitation and paraphernalia indicative of a grow operation amply support the conclusion that the appellants were in control of the operation. The grow operation was so obvious that it would have been impossible for the occupants to avoid knowledge of its existence.

[7] With respect to sentence, we are of the view that in the circumstances of this case, the authorities do not support the sentence of thirteen months. The appellants have served five and a half months and we would reduce the sentence to time served.

[8] The conviction appeal is dismissed and the sentence appeal is allowed and reduced to time served.

“J.M. Labrosse J.A.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”