COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hoang, 2013 ONCA 430

DATE: 20130621

DOCKET: C55166

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lam Dinh Hoang

Appellant

Paula Rochman, for the appellant

Bradley Reitz, for the respondent

Heard and released orally: June 11, 2013

On appeal from the conviction entered by Justice Robert J. Smith of the Superior Court of Justice on September 30, 2011 and from the sentence imposed on March 6, 2012.

ENDORSEMENT

[1] The sole issue at trial and on the conviction appeal relates to the search of the appellant’s car and the seizure of 26 pounds of raw marijuana found in the trunk.

[2] Following a voir dire, the trial judge found that there was no breach of the appellant’s ss. 8 or 9 Charter rights and that the seized items should not be excluded from evidence pursuant to s. 24(2).

[3] The appellant challenges the finding that the arrest and search were conducted in circumstances where the police had reasonable and probable grounds to believe that the appellant was in possession of marijuana. The appellant also argues that the reasons are inadequate, in that they fail to reconcile the differences in the testimony given by the two arresting officers.

[4] We do not accept these submissions. It was open to the trial judge to find reasonable and probable grounds for arrest on the basis of Constable Vogelzang’s observations of the appellant and his evidence that he, an officer experienced with investigating offences relating to the possession of marijuana, detected the smell of raw marijuana emanating from the appellant’s car.

[5] This court’s recent decision in R. v. Morris, 2013 ONCA 223, at para. 8, makes it clear that while caution must be used in relying on ‘smell’ evidence, there is no legal barrier to its use. The record in this case provided an evidentiary basis for the trial judge’s findings. As a result, we see no error in the trial judge’s conclusion that the officer had sufficient grounds for the arrest.

[6] As to the submission that the trial judge failed to reconcile the evidence of the two officers, in our view, on this record, reconciliation was not necessary. Even if we were to assume that the search of the appellant’s car constituted a breach of his Charter rights, we agree with the judge’s treatment of s. 24(2).

[7] Accordingly, we dismiss the conviction appeal.

[8] The appellant received a sentence of nine months’ incarceration plus two years’ probation. He does not challenge the length of the sentence, only that a conditional sentence would have been fit. Despite the fresh evidence concerning the appellant’s difficult personal circumstances, we see no error in the trial judge’s rejection of a conditional sentence, particularly given the appellant’s antecedents and the amount of marijuana involved.

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

“Paul Rouleau J.A.”

“David Watt J.A.”

“Gloria Epstein J.A.”