COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chaing, 2012 ONCA 59

DATE: 20120130

DOCKET: C53410

BEFORE: O’Connor A.C.J.O., MacPherson J.A. and O’Connor J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Chhay Chaing

Appellant

COUNSEL:

David Anber, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: January 27, 2012

On appeal from the conviction entered on January 12, 2011 and the sentence imposed on March 8, 2011 by Justice Roy of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of possession of marijuana for the purposes of trafficking by Roy J. of the Superior Court of Justice on January 12, 2011. He was sentenced to three months’ incarceration and 12 months’ probation on March 8, 2011.

[2] On the conviction appeal, the appellant raises five grounds of appeal.

[3] The first ground of appeal is that the trial judge erred in relying on the appellant’s testimony on the pre-trial Charter application on the issue of guilt at trial. The respondent Crown concedes that the trial judge did err in this respect.

[4] It is clear from the record that the appellant testified on the Charter voir dire only, and not at the trial proper. This is reflected in the following exchange between the trial judge and defence counsel:

THE COURT: ...you don’t plan to call any evidence on the substantive charge?

MR. ANBER: That’s correct, Your Honour.

[5] Unfortunately, the trial judge appears to have forgotten this when he turned to his brief oral decision. He said:

THE COURT: ...I can only say on the issue of possession, frankly the evidence is there. The evidence is overwhelming, and I have no difficulty whatsoever in being satisfied beyond a reasonable doubt on all the evidence including his own client’s own evidence, that Mr. Chaing had possession, in other words that he had knowledge, and that he had control over the drugs that were found in the trunk. [Emphasis added.]

[6] The only dispute between the parties concerns the disposition of the appeal. The appellant contends that since there is no evidence to establish a link between the drugs sent to Health Canada for analysis and the drugs to which Health Canada’s certificate applies, i.e. his second ground of appeal, the result should be an acquittal.

[7] We disagree. The information on Health Canada’s certificate identifying the police officer, police detachment and referral date, coupled with the officer’s testimony at trial, establish a sufficient link between the drugs sent and the drugs analyzed.

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

“Dennis O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“O’Connor J. (ad hoc)”