Court of Appeal for Ontario

Citation: R. v. Nguyen, 2008 ONCA 149

Date: 20080229

Docket: C46997

Before: WINKLER C.J.O., SIMMONS AND LAFORME JJ.A.

Between:

HER MAJESTY THE QUEEN

Respondent

And

HUNG VAN NGUYEN

Appellant

Counsel:

Najma Jamaldin for the appellant

Brian G. Puddington and Brendan Gluckman for the respondent

Heard and released orally: February 22, 2008

On appeal from the conviction entered by Justice John M. Ritchie of the Ontario Court of Justice dated April 11, 2007 and from the sentence imposed by Justice Ritchie dated April 25, 2007.

ENDORSEMENT

[1] The appellant appeals his conviction for possession of marijuana for the purpose of trafficking and seeks leave to appeal the four-month custodial sentence that was imposed.

[2] In our view, it was open to the trial judge to reject the appellant’s innocent explanation for attending at the grow operation. The trial judge identified important inconsistencies in the appellant’s evidence. Moreover, we agree with his finding that aspects of the appellant’s evidence were incredible. Even if the trial judge mischaracterized the evidence concerning the number of bags of marijuana plants that were present on the premises, in our view, that does not undermine his reasoning in rejecting the appellant’s explanation. It was evident from the agreed statement of facts that there was a substantial quantity and smell of marijuana on the premises.

[3] Further, once the trial judge rejected the appellant’s innocent explanation, in our view, there was sufficient evidence to support a finding that the appellant had knowledge and control of the marijuana. We see no error in the following findings:

Based on what I have said, I see both knowledge and control. There were plants everywhere in the house. There was the smell of marijuana. There had to be knowledge. There was control in that Mr. Nguyen was the only person there. He had the keys and, as I say, he was knee deep in marijuana plants.

It is, in my opinion, a reasonable inference that the defendant was in the course of moving the plants when the police arrived. I find that there was an intent to possess the drugs based on all of the circumstances and evidence I have referred to.

[4] We see no error in the trial judge’s application of the burden and standard of proof. Although the trial judge dealt with the final two steps of W.D. in two brief paragraphs near the conclusion of his reasons, when read as a whole his reasons make it clear that he conducted a proper analysis.

[5] Finally, on the trial judge’s findings, we see no air of reality to the public duty defence raised for the first time on appeal.

[6] The conviction appeal is therefore dismissed.

[7] The appellant properly concedes that the sentence imposed was not outside the range. Particularly having regard to the fact that a prior conditional sentence for a similar offence did not deter the appellant, it was open to the trial judge to conclude, as he did, that a conditional sentence was not appropriate. Leave to appeal sentence is granted but the sentence appeal is dismissed.

"Winkler C.J.O."

"Janet Simmons J.A."

"H.S. LaForme J.A."