Court of Appeal for Ontario

Citation: R. v. Chang, 2009 ONCA 564

Date: 2009-07-13

Docket: C49462

Before: O’Connor A.C.J.O., MacPherson and Cronk JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Dorrin Chang

Appellant

Counsel:

Michael Dineen, for the appellant

Bradley Reitz, for the respondent

Heard and orally released: July 8, 2009

On appeal from the conviction entered by Justice Anne M. Molloy of the Superior Court of Justice dated November 22, 2007.

ENDORSEMENT

[1] The appellant was convicted of three offences, trafficking in a substance held out to be cocaine, possessing a loaded restricted firearm, and being present in a motor vehicle with a firearm. He appeals his convictions on the two firearms offences.

[2] An undercover police officer posing as a drug buyer arranged to meet Keith Meredith to purchase 2 kilograms of cocaine for about $70,000. When the two met, the officer showed Meredith the money. Meredith left his car and met the appellant and Dwayne Hall. After the three men had a conversation, they walked together to the car and got in. The appellant was carrying a bag of fake cocaine. Hall had a gun in his belt. Before the deal was completed, the undercover officer signalled other officers in the area who arrested the three men. The trial judge found that the three men had formed an intention in common to rob the officer of the $70,000. Relying upon s. 21(2) of the Criminal Code, she went on to conclude that the appellant was a party to the firearm offences because he knew or ought to have known that one of the three would have a gun.

[3] The appellant argues that the trial judge erred in finding that the appellant had formed a common intention with the others to rob the officer. We do not accept this argument. The actions of the three men throughout the incident, including their comments in the presence of the officer and the way the three positioned themselves in the car, were consistent with the conclusion that they were assisting each other in preparing to rob the officer. Moreover, the fake cocaine that the appellant carried to the car was very obviously fake. It was a worthless bag of plaster with bits of twigs mixed in. The three men believed they were dealing with a high level drug dealer. As the trial judge pointed out, it stretches credulity to suggest that once the dealer had looked into the bag, he would willingly, without a struggle, pass over $70,000.

[4] We agree with the trial judge that “the inescapable conclusion is that [the three men] intended to rob the undercover officer” and that they knew they would need to use force or violence to effect this end. Thus, we see no basis to interfere with the trial judge’s finding that the appellant was guilty of the two firearm offences.

[5] The appellant also argues that the two convictions for firearm offences cannot stand in view of the principle in R. v. Kienapple. This argument was not raised before the trial judge. Nonetheless, in light of the fact that the appellant was found guilty of the firearm offences by virtue of being a party to a common intention to rob under s. 21(2) of the Code, we are of the view that one of the charges ought to be stayed. Accordingly, the conviction on the charge pursuant to s. 94(1) of the Criminal Code, the less serious charge, is set aside and that charge is stayed.

[6] The appeal is dismissed with respect to the other firearm offence.

“D. O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”