COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2016 ONCA 48

DATE: 20160115

DOCKET: C59351

MacPherson, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Toan Tran

Respondent

Lisa Csele, for the appellant

Ian Carter, for the respondent

Heard: January 12, 2016

On appeal from the acquittal entered on August 22, 2014 by Justice David Paciocco of the Ontario Court of Justice.

ENDORSEMENT

[1] The Crown appeals from the acquittal entered by Justice Paciocco of the Ontario Court of Justice on August 22, 2014 on charges of possession of marijuana for the purpose of trafficking, production of marijuana, and theft of electricity. The trial judge concluded that the police did not have reasonable and probable grounds to arrest the passenger in the car driven by the respondent and, therefore, the appellant's ss. 8 and 9 Charter rights were violated.

[2] On appeal, the Crown contends that the trial judge erred by not finding that the police had grounds to detain the respondent for the purposes of an investigation of the offence of possession of marijuana.

[3] The problem with this position is that the Crown did not advance it at trial. At trial, the Crown's position was that the police had grounds to arrest the passenger for the theft of electricity and that the ultimate arrest of the respondent flowed from this valid arrest. The trial judge rejected this position and the Crown does not challenge it on this appeal. Instead, the Crown advances an entirely new argument as a basis for finding the respondent guilty of the various drug related offences.

[4] The trial judge's reasons were responsive to the Crown's legal submissions. It would be unfair to the trial judge and, importantly, to the respondent to allow the appeal and enter convictions against the respondent or order a new trial on the basis of a factual scenario and legal submissions not advanced by the Crown at trial. We agree with what Duff C.J. said almost 80 years ago in R. v. Wexler, 1939 CanLII 41 (SCC), [1939] S.C.R. 350, at p. 353:

To set aside a verdict of acquittal in such circumstances, merely because the case for the Crown might, on a possible view of the evidence, have been put upon another footing would, it appears to me, introduce a most dangerous practice; a practice not, I think, sanctioned by the statute.

[5] The appeal is dismissed.

"J.C. MacPherson J.A."

"David Watt J.A."

"B.W. Miller J.A."