



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2019 ONCA 180

DATE:

20190306

DOCKET: C63929

Juriansz, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Phuong Dui Nguyen

Appellant

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 appellants 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 appellants drivers 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 Crowns evidence had proven the
    appellant had the requisite knowledge and control of the drugs to establish
    possession.

[4]

Appellants counsel invites us to revisit several of the trial judges
    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 judges reasons do not
    sufficiently deal with this officers 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 judges
    conclusion rested principally on the appellants 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 judges reasons as a whole, it is clear to us that the
    trial judges mention of this fact is in the nature of narrative used to
    introduce her analysis. Again, the trial judges 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.


