COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Penner, 2013 ONCA 272
DATE: 20130426
DOCKET: C54325

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

Shawn Clavin Penner
Applicant/Appellant

Christopher D. Hicks, for the appellant
Chris De Sa, for the respondent

Heard: April 25, 2013

On appeal from the conviction entered on March 28, 2011 and the sentence imposed on August 10, 2011 by Justice Dougald R. McDermid of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant raises two arguments on the conviction appeal. First, that a special instruction was required because the appellant’s conduct during the encounter with the police was post-offence conduct. We do not agree. The possession was a continuing offence, and did not simply end when the appellant left the vehicle. In any event, the appellant’s explanation for his conduct, that he was anxious to return the vehicle to his mother, was clearly placed before the jury.

[2] Second, on this record, there were clear concessions that if the appellant was in possession, that possession was for the purpose of trafficking. There was no objection of the charge on this basis. The theory that somehow the appellant was in possession because he knew his uncle had placed the drugs in the vehicle but that he did not intend to traffic was never raised at trial and there is no air of reality to that theory.

[3] The appeal from conviction is dismissed.

[4] As to sentence, given the fresh information that the appellant is in custody, a conditional sentence would not be practical. In any event, we find no error in principle by the trial judge in refusing to impose a conditional sentence.

[5] Leave to appeal sentence is refused.