



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Penner, 2013 ONCA 272

DATE: 20130426

DOCKET: C54325

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Clavin Penner

Applicant/Appellant

Christopher D. Hicks, for the appellant

Chris De Sa, for the respondent

Heard: April 25, 2013

On appeal from the conviction entered on March 28, 2011
    and the sentence imposed on August 10, 2011 by Justice Dougald R. McDermid of
    the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises two arguments on the conviction appeal. First, that
    a special instruction was required because the appellants conduct during the
    encounter with the police was post-offence conduct. We do not agree. The possession
    was a continuing offence, and did not simply end when the appellant left the
    vehicle.  In any event, the appellants explanation for his conduct, that he
    was anxious to return the vehicle to his mother, was clearly placed before the
    jury.

[2]

Second, on this record, there were clear concessions that if the
    appellant was in possession, that possession was for the purpose of
    trafficking.  There was no objection of the charge on this basis. The theory
    that somehow the appellant was in possession because he knew his uncle had
    placed the drugs in the vehicle but that he did not intend to traffic was never
    raised at trial and there is no air of reality to that theory.

[3]

The appeal from conviction is dismissed.

[4]

As to sentence, given the fresh information that the appellant is in
    custody, a conditional sentence would not be practical. In any event, we find
    no error in principle by the trial judge in refusing to impose a conditional
    sentence.

[5]

Leave to appeal sentence is refused.


