CITATION: R. v. Phung, 2007 ONCA 72
DATE: 20070202
DOCKET: C43620
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – NGHIA PHUNG (Appellant)
BEFORE:
SHARPE, SIMMONS JJ.A. and PARDU J. (Ad hoc)
COUNSEL:
Kim Schofield
for the appellant
Marian Bryant
for the respondent
HEARD & RELEASED ORALLY:
January 30, 2007
On appeal from the judgment of Justice G. William Dandie of the Superior Court of Justice dated February 7, 2005.
E N D O R S E M E N T
[1] The appellant was convicted of production of marijuana and theft of electricity after a judge alone trial before Dandie J. of the Superior Court of Justice. The appellant was sentenced to a twelve-month conditional sentence with a condition that he pay a fine of $25,000. The appellant appeals both conviction and sentence.
[2] He raises two issues on the conviction appeal.
- Unreasonable Verdict
[3] We do not accept the submission that the verdict was unreasonable. The appellant was found in the sparsely furnished house by the police when they executed a search warrant. He had been there alone for almost one hour. There were obvious signs that marijuana was being grown in the house. The appellant had the keys to the house on the same ring as the car keys and a garage opener which he left in the car. While the Crown’s case was certainly not overwhelming, there was some evidence which might lead to conviction.
- Reversal of the Burden of Proof
[4] The trial judge found that “the web of evidence led by the Crown calls out imperatively for an answer and an explanation”. The appellant did testify and offered an explanation. The trial judge explained his approach to the appellant’s evidence in the following passage:
The accused having testified, I am to determine whether or not his explanation might reasonably be true and thereby raise the reasonable doubt to which he is entitled.
I interpret the use of the word “might” in the phrase “might reasonably be true” to mean more likely than not.
[5] After reviewing the appellant’s evidence, the trial judge concluded as follows:
I therefore find on the balance of probabilities that the accused has failed to establish that his explanation as to why he was at the premises in the circumstance existing at that time might reasonably be true and that he was at the premise for no other purpose.
[6] In our view, the trial judge erred by imposing a reverse onus on the appellant. The trial judge was entitled to find as a tactical matter that absent an explanation the accused risked being convicted. However, in assessing the explanation offered by the appellant and requiring the appellant’s explanation to rise to the level of satisfying the balance of probabilities standard, the trial judge erred. It is clear from R. v. W.(D.) (1991), 63 C.C.C. (3d) 205 (S.C.C.), that the evidence of the accused needs only reach the level of raising a reasonable doubt to warrant an acquittal.
[7] In our view this error is fatal to the conviction. The conviction is set aside and a new trial is ordered. In view of our disposition of the conviction appeal we need not deal with the sentence appeal. We note, however, that the respondent conceded that there was no legal foundation for the condition that the appellant pay a fine of $25,000.
“Robert J. Sharpe J.A.”
“J. Simmons J.A.”
“G. Pardu J. (Ad hoc)”