Court of Appeal for Ontario

CITATION: R. v. Nguyen, 2012 ONCA 534

DATE: 20120807

DOCKET: C54562

BEFORE: Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Van Dong Nguyen

Respondent

COUNSEL:

Kevin Wilson, for the applicant (appellant)

Victoria Rivers, for the respondent

HEARD: August 3, 2012

On appeal from the sentence imposed on October 25, 2011 by Justice Ronald Boivin of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The trial judge is entitled to rely on hearsay to make findings of fact on sentence even if the facts are disputed: s. 723(5). Of course, the party relying on the disputed fact carries the onus: s. 724(3)(b). We see no legal impediment to a party discharging that burden with disputed hearsay evidence, although trial judges will, quite properly, often decline to rely on hearsay evidence to prove facts in dispute.

[2] We will not interfere with the trial judge’s findings that the respondent was an addict, “turned to crime to support his habit” and was taking rehabilitative steps. In light of these facts, it cannot be said that the sentence is unfit.

[3] Leave to appeal is granted, but the appeal is dismissed.