Court of Appeal for Ontario

CITATION: R. v. Nguyen, 2013 ONCA 588

DATE: 20130926

DOCKET: C53007 and C53008

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thuy Thi Nguyen and Xuan Hoa Le

Appellants

Counsel:

Gordon Akilie, for the appellants

Michael Perlin, for the respondent

Heard: September 19, 2013

On appeal from the conviction entered on July 28, 2010 by Justice H.L. Fraser of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellants raise two grounds of appeal.

[2] The first is that the trial judge erred in his application of the doctrine of recent possession by applying the reasonableness analysis to items of evidence (such as the break and enter tools) that were not directly the explanation for the possession of the stolen goods.

[3] We do not agree that the trial judge made an error in this regard. He applied the law as set out in para. 12 of the decision of the Supreme Court of Canada R. v. Kowlyk 1988 CanLII 50 (SCC), 1988 2 SCR 59. That law requires the trial judge to consider all the circumstances to decide if the inference of knowing possession or theft or both is available.

[4] The second argument is that the trial judge misapplied W.D. and did not properly apply the second step in the analysis. Again, we do not agree. The trial judge considered the evidence of the appellant in the context of all of the evidence and rejected it. It is clear that he concluded that it did not raise a reasonable doubt. He was satisfied on the evidence he did accept that the three offences had been proven beyond a reasonable doubt.

[5] The appeal is therefore dismissed.