



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chaing, 2012 ONCA
    59

DATE: 20120130

DOCKET: C53410

OConnor A.C.J.O., MacPherson J.A. and OConnor
    J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Chhay Chaing

Appellant

David Anber, for the appellant

Ghazala Zaman, for the respondent

Heard and released orally: January 27, 2012

On appeal from the conviction entered on January 12, 2011
    and the sentence imposed on March 8, 2011 by Justice Roy of the Superior Court
    of Justice.

ENDORSEMENT

[1]

The appellant was convicted of possession of marijuana for the
    purposes of trafficking by Roy J. of the Superior Court of Justice on January
    12, 2011.  He was sentenced to three months incarceration and 12 months
    probation on March 8, 2011.

[2]

On the conviction appeal, the appellant raises five grounds of
    appeal.

[3]

The first ground of appeal is that the trial judge erred in
    relying on the appellants testimony on the pre-trial
Charter
application on the issue of guilt at trial.  The respondent Crown concedes that
    the trial judge did err in this respect.

[4]

It is clear from the record that the appellant testified on the
Charter
    voir dire
only, and not at the trial proper.  This is reflected in the
    following exchange between the trial judge and defence counsel:

THE COURT: ...you dont plan to call any evidence on the
    substantive charge?

MR. ANBER: Thats correct, Your Honour.

[5]

Unfortunately, the trial judge appears to have forgotten this
    when he turned to his brief oral decision.  He said:

THE COURT: ...I can only say on the issue of possession,
    frankly the evidence is there.  The evidence is overwhelming, and I have no
    difficulty whatsoever in being satisfied beyond a reasonable doubt on all the
    evidence
including his own clients own evidence
, that Mr. Chaing had
    possession, in other words that he had knowledge, and that he had control over
    the drugs that were found in the trunk.  [Emphasis added.]

[6]

The only dispute between the parties concerns the disposition of
    the appeal.  The appellant contends that since there is no evidence to
    establish a link between the drugs sent to Health Canada for analysis and the
    drugs to which Health Canadas certificate applies,
i.e.
his second
    ground of appeal, the result should be an acquittal.

[7]

We disagree.  The information on Health Canadas certificate
    identifying the police officer, police detachment and referral date, coupled
    with the officers testimony at trial, establish a sufficient link between the
    drugs sent and the drugs analyzed.

[8]

The appeal is allowed, the conviction is set aside, and a new
    trial is ordered.

Dennis OConnor A.C.J.O.

J.C. MacPherson J.A.

OConnor J. (ad hoc)


