Court of Appeal for Ontario

Date: 2019-05-03 Docket: C64457

Judges: Watt, Pardu and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Xing Hung Truong Appellant

Counsel

J. Randall Barrs, for the appellant

James Clark, for the respondent

Heard: April 30, 2019

On appeal from the convictions entered on May 18, 2017 and sentence imposed on December 5, 2017 by Justice David A. Fairgrieve of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals convictions of possession of cocaine and of heroin for the purpose of trafficking and the sentence of 26-months' imprisonment imposed upon him. At the conclusion of argument, we dismissed both appeals and said that our reasons for doing so would follow. These are our reasons.

The Background Facts

[2] The appellant was arrested when police officers executed a search warrant at an apartment unit. Although present at the apartment when the warrant was executed, the appellant neither leased nor lived in the apartment. When he was searched incident to arrest, police seized 4.75 grams of crack cocaine and 15.32 grams of heroin from the waistband of the appellant's underwear. Each was wrapped separately in cellophane. Apart from a digital scale located in plain view in the kitchen of the apartment, but not linked forensically to the appellant or any other occupant of the apartment, police found no other paraphernalia associated with either personal use or trafficking.

[3] When arraigned, the appellant pleaded not guilty to the offences charged – possession for the purpose of trafficking – but guilty to the included offences of possession. The Crown did not consent to entry of this plea. The trial proceeded on both counts of possession for the purpose of trafficking to which pleas of not guilty were entered.

The Trial Proceedings

[4] At trial, the single issue to be determined was that of purpose, in particular, whether the Crown had proven beyond a reasonable doubt that the appellant's purpose in having possession of the cocaine and heroin was for trafficking.

[5] A police officer called by the Crown was qualified to give expert opinion evidence about the sale, packaging, pricing and quantities of crack cocaine and heroin consistent with personal and commercial use of the drugs.

[6] The officer explained that addict traffickers in both drugs purchase quantities of drugs that exceed personal use amounts and "piece off" the excess to others to acquire funds for further purchases. In this case, the amounts of each drug, especially the heroin, exceeded the amounts usually purchased for personal use. No dispute arose about the officer's calculation of the street value of the drugs. In his view, the amounts and values involved meant that possession was for commercial purposes, not personal use.

[7] A medical doctor, qualified as an expert in addiction medicine, gave opinion evidence about the diagnosis, symptoms, associated behaviours, treatment and outcomes of treating addiction. He said that the amount of drugs seized from the appellant represented a supply of a few weeks for personal consumption while in active addictive disease, although the length of time such a supply would last was a variable, not a constant. The doctor agreed that the police expert had provided very reliable and accurate information.

[8] The doctor pointed out that there were always outliers, those who deviate from average uses. This depends on the addict's financial means. When in funds they often prefer to buy a larger quantity at a cheaper price and correspondingly to reduce the risk associated with frequent interactions with dealers.

[9] The appellant testified about his addiction to both heroin and crack cocaine, explaining the amounts he used on a daily basis. When arrested, he was living on social assistance of $380 per month, $150 of which he paid for rent. He said he obtained the money necessary to purchase the drugs of which he was found in possession from his share of the winnings by a man who had won thousands of dollars in an online poker game. The appellant claimed to have provided this man with some funds to join a poker tournament on a website.

The Appeal from Conviction

[10] The appellant says that the trial judge erred in his W.(D.) analysis because he failed to consider whether he was left in a reasonable doubt after the appellant had testified.

[11] In our view, when the trial judge's reasons are considered as a whole in the circumstances described by the evidence adduced at trial, the argument advanced fails.

Analysis

[12] This was not a legally complex or factually intricate case. Possession was admitted. Likewise, the quantity and nature of the substances found, their location and packaging. The single issue for the trial judge to determine, based on the evidence as a whole, was that of the purpose of the appellant's possession.

[13] After acknowledging the single issue he was required to decide, the trial judge undertook a detailed review of the evidence adduced at trial before bending to the task at hand: to decide whether the Crown had proven beyond reasonable doubt that the appellant's guilt was the only rational conclusion based on the entirety of the evidence. To satisfy this burden, the trial judge reasoned, the Crown was required to eliminate any reasonable doubt that the appellant had heroin and cocaine merely for personal use, and to establish beyond a reasonable doubt that he had them for the purpose of trafficking as defined in s. 2(1) of the CDSA.

[14] The trial judge acknowledged the application of the principles in W.(D.) to the circumstances of this case. On this issue he wrote:

[60] Given the presumption of innocence, the doctrine of reasonable doubt applied to the credibility issue that arose in this case. If the accused's evidence-in-chief that he had no intent to traffic in the substances was either believed or left the Court in a state of reasonable doubt, then the law required that he be found not guilty of the charges. A third possibility, however, also had to be considered. Even if the relevant defence evidence was completely rejected, the accused could still only be found guilty if it could be said that the evidence on which the Crown relied was accepted as proof beyond a reasonable doubt of the facts that had to be established to make out the elements of the offence. There was clearly nothing illogical about rejecting the accused's original denial that he intended to traffic in the substances, but still not being satisfied by the other evidence of the accused's guilt beyond a reasonable doubt.

[15] The trial judge rejected the appellant's evidence that his possession of both crack cocaine and heroin was for his own personal use since he was addicted to both. The trial judge considered the appellant's claim of windfall online poker winnings as the source of funds to purchase the thousands of dollars' worth of drugs of which he was found in possession to be far-fetched and unsupported by a credible consistent narrative about the amount, source and timing of this supposed windfall. The judge also found significant discrepancies between what the appellant said in giving evidence and what he had told the defence expert in addiction medicine about the nature and extent of his addictions and his daily drug consumption. In sum, these inconsistencies made it impossible, the judge said, to regard the appellant as a credible witness who testified truthfully.

[16] After concluding that he did not believe the appellant's "personal use" explanation, and that he was not left in a reasonable doubt by it, the trial judge continued:

[68] I did not believe the accused's evidence-in-chief that he possessed the drugs only for personal use, nor did his initial denial of any trafficking purpose leave me in a reasonable doubt that it might be true. It is important to point out, however, that the rejection of the accused's evidence in this regard did not strengthen the Crown's case. Given the burden of proof, the onus remained on the Crown to prove all of the essential elements of each offence beyond a reasonable doubt. Findings of fact could only be based on evidence that was accepted by the court and on the inferences reasonably drawn from them. As already stated, a finding of guilt could only be made if it was the only rational conclusion that was available on the whole of the evidence.

[17] We see no error in the trial judge's conclusion from the whole of the evidence that the controverted issue of purpose was proven beyond a reasonable doubt. The conclusion, developed over several pages of reasons, discloses no misapprehension of evidence and no substitution of impermissible speculation for reasonable inference, rather full appreciation of and faithful adherence to the burden and standard of proof.

[18] The appeal from conviction is dismissed.

The Appeal from Sentence

[19] On the appeal from sentence, the appellant accepts, as he must, that substantial deference is the sentencing judge's due in this court. We are disentitled to intervene absent an error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor that had an impact on the sentence ultimately imposed.

[20] The appellant does not say that the sentence imposed, a bottom end term of imprisonment in a penitentiary, falls outside the range of sentence well established for heroin trafficking. What he urges is that the sentencing judge gave too little weight to the mitigating factors of age (21 at the time of the offence and 24 at sentencing); the absence of a prior record; the sentencing objective of rehabilitation; and the significance of the appellant's addiction.

[21] We are not persuaded that there is any basis upon which we are entitled to interfere with the sentences imposed at trial.

[22] We begin, as we must, from a stance of deference to the sentencing decision of the trial judge. We recognize that errors in principle, failures to consider a relevant factor or erroneous consideration of aggravating or mitigating factors can only justify our intervention where it appears from the judge's decision that such an error had an impact on the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. Nor may we intervene simply because we would have weighed the relevant factors differently. Indeed, were we entitled to do so, we would abandon deference altogether: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46.

[23] In this case the appellant's submissions narrow to a complaint about the weight the sentencing judge assigned to the objectives of deterrence and denunciation (excess weight), on the one hand, and rehabilitation (insufficient weight), on the other, but with an acknowledgment that each sentence imposed falls within the appropriate range of sentence. In these circumstances, we are unable to conclude that the claimed errors had any impact on the sentence imposed.

[24] Leave to appeal sentence is granted, but the appeal from sentence is dismissed, save and except that the victim surcharge ordered by the sentencing judge is set aside and any funds paid as a result of its imposition ordered returned to the appellant.

"David Watt J.A."

"G. Pardu J.A."

"I.V.B. Nordheimer J.A."