Court of Appeal for Ontario

Date: 2019-03-06 Docket: C63929

Judges: Juriansz, Lauwers and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Phuong Dui Nguyen Appellant

Counsel

Mark Halfyard, for the appellant

Xenia Proestos, for the respondent

Heard and released orally: March 5, 2019

On appeal from: the conviction entered on March 24, 2017 and the sentence imposed on June 28, 2017 by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his convictions by judge alone of three charges of possession for the purpose of trafficking methamphetamine, MDMA and ketamine.

[2] The appellant was arrested when the police executed a search warrant at an apartment leased by the appellant's girlfriend. When the police entered the apartment the appellant was the only occupant. The police found drugs in plain view in the kitchen and found more similarly packaged drugs in a bedroom in which the belongings of the appellant were located. The appellant's driver's licence indicated his address was the address of the apartment. The appellant testified that he was simply a visitor and had no knowledge of any of the drugs. His testimony was rejected by the trial judge in thorough reasons.

[3] The issue at trial became whether the Crown's evidence had proven the appellant had the requisite knowledge and control of the drugs to establish possession.

[4] Appellant's counsel invites us to revisit several of the trial judge's findings of fact and credibility. He contends that the evidence of a surveillance officer, who testified he observed the appellant come out of the apartment building, engage in a suspected drug transaction and re-enter the building, is not reliable. He also submits that the testimony of another officer, who said that after hearing the report of the suspected drug transaction, he entered the building and made his way to the 20th floor in time to see the back of a man, possibly the appellant, entering the apartment, is implausible and unworthy of belief. The officer testified the man was wearing the same clothing as the man who had engaged in the hand-to-hand transaction moments earlier. The appellant argues the trial judge's reasons do not sufficiently deal with this officer's credibility.

[5] It was for the trial judge to weigh the evidence of these officers. We are not persuaded there is any basis for us to interfere with her reliance on their evidence. We see no deficiency in her reasons. The trial judge's conclusion rested principally on the appellant's presence in the apartment, other items of evidence that tied him to the apartment and the location of the drugs and drug paraphernalia in the apartment.

[6] The appellant also submits that the trial judge erred by relying on the fact that the appellant was the target of the search warrant to bolster the case for his knowledge and control of the drugs found in the apartment. On a reading of the trial judge's reasons as a whole, it is clear to us that the trial judge's mention of this fact is in the nature of narrative used to introduce her analysis. Again, the trial judge's conclusion was based on the factors mentioned above.

[7] The appeal is dismissed.

"R.G. Juriansz J.A."

"P. Lauwers J.A."

"Gary Trotter J.A."