Court of Appeal for Ontario

Citation: R. v. Nguyen, 2008 ONCA 335

Date: 2008-05-01

Docket: C45900

Between:

Her Majesty the Queen (Respondent)

and

Van Hung Nguyen (Appellant)

Before: Feldman, Simmons and Rouleau JJ.A.

Counsel:

Kim Schofield for the appellant

David Rowcliffe for the respondent

Heard and released orally: April 10, 2008

On appeal from conviction by Justice Roderick D. Clarke of the Ontario Court of Justice dated January 20, 2006 and sentence imposed by Justice Clarke on June 30, 2006.

Endorsement

[1] The appellant appeals his conviction and sentence for possession of proceeds of crime and laundering proceeds of crime. We would allow the appeal and order a new trial because of the following error of law by the trial judge.

[2] The trial judge concluded that the equipment found in the two trucks was used for a marijuana grow-op operation and that the $192,000 found in the two trucks was the proceeds of the production and sale of marijuana. To find knowledge by the co-accused, Mr. Hoang, the trial judge relied on his admission to the customs officers that both the equipment and the money belonged to him.

[3] The trial judge then turned to the issue of whether the appellant knew that the money was in the trucks as it was hidden in packages in various locations. The trial judge concluded that the appellant did have that knowledge and therefore was guilty of the offences.

[4] However, the trial judge did not at any point address the issue of whether Mr. Nguyen had knowledge that the money was proceeds of crime. This was a necessary element of both offences. While there was evidence from which a trier of fact could infer knowledge by the appellant of the origin of the money in the trucks, whether that knowledge was proved beyond a reasonable doubt was an issue that had to be specifically determined by the trial judge.

[5] On that basis we would allow the appeal, set aside the conviction and order a new trial.

[6] The appellant also raised the issue of the scope of the expert evidence in this case. Although it is unnecessary that we address this issue in coming to our decision, we wish to comment briefly on it as we have ordered a new trial.

[7] We agree with the appellant that the expert evidence in this case led by the Crown on the issue of proceeds of crime, laundering of such proceeds, and marijuana grow-operations went well beyond the appropriate bounds for the admission of such evidence. The witness Rodonets gave evidence of what drug dealers and money launderers normally say when confronted by authorities at the border, for example, that they won the money in a lottery. Rodonets then used that evidence as part of the basis for his opinion that the accused, having given a similar explanation, was guilty of the crimes charged. The trial judge relied on this evidence in his reasons.

[8] This opinion evidence was clearly inappropriate. Expert evidence of witnesses who have extensive experience in a specific area that may not be familiar to the court can be called on to enlighten the court regarding that experience. But such expert witnesses should not be permitted to go further and express opinions based on anecdotal reports of typical excuses advanced by persons stopped with money in their vehicle.

[9] The appeal is allowed, the conviction set aside and a new trial ordered.

Signed: "K. Feldman J.A." "Janet Simmons J.A." "Paul Rouleau J.A."