Court of Appeal for Ontario

CITATION: R. v. Wong, 2012 ONCA 330

DATE: 20120517

DOCKET: C52735

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Wong

Appellant

Counsel:

Anthony Wong, acting in person

Paul Bernstein, as duty counsel

J. Sandy Tse, for the respondent

Heard and released orally: May 14, 2012

On appeal from the conviction entered on March 9, 2010 and the sentence imposed on August 26, 2010 by Justice Douglas K. Gray of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant, with the assistance of duty counsel, argues three grounds of appeal.

[2] First, the appellant submits that the trial judge erred in instructing the jury that Wong’s evidence about what Morgan said to him could not be relied on by Wong to show an innocent association. Even if we were to agree with this submission – and we do not need to finally resolve this point – the error was of no consequence. Wong himself testified and denied that he knew anything about the gun or the robbery until after he had been arrested. His sister too, testified that Morgan had called her and told her that the gun was his and not Wong’s. The jury obviously rejected both Wong’s evidence and his sister’s evidence, and found that neither raised a reasonable doubt. In the light of the jury’s rejection of this evidence, what Wong claimed Morgan told him could not have assisted Wong’s defence.

[3] Second, the appellant submits that on the s. 95 charge, the trial judge erred by failing to instruct the jury that to convict they had to be satisfied beyond a reasonable doubt Wong knew the gun was loaded. The Crown concedes that the trial judge’s instructions on s. 95 omitted the knowledge element of the offence. However, the Crown contends that the omission, on the facts of this case, caused no substantial wrong. We agree.

[4] This was intended to be a violent, armed robbery. The parties agreed that the gun was a loaded, prohibited firearm. In the circumstances, once the jury convicted the appellant of possession of the firearm, inevitably they must have been satisfied Wong knew that the firearm was loaded.

[5] Third, the appellant submits that the trial judge erred by failing to stay the s. 94 conviction on the Kienapple principle. In support of this submission, he relies on the decision of this court in R. v. Chang, [2009] O.J. No. 2938. In view of the qualification in para. 5 of Chang, we do not think it applies here.

[6] Moreover, in this case, the trial judge carefully analyzed whether Kienapple applied and concluded that it did not. We have not been persuaded of any basis to set aside the trial judge’s conclusion.

[7] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”