



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hoang, 2013 ONCA 430

DATE: 20130621

DOCKET: C55166

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lam Dinh Hoang

Appellant

Paula Rochman, for the appellant

Bradley Reitz, for the respondent

Heard and released orally: June 11, 2013

On appeal from the conviction entered by Justice Robert
    J. Smith of the Superior Court of Justice on September 30, 2011 and from the
    sentence imposed on March 6, 2012.

ENDORSEMENT

[1]

The sole issue at trial and on the conviction appeal relates to the search
    of the appellants car and the seizure of 26 pounds of raw marijuana found in
    the trunk.

[2]

Following a
voir dire
, the trial judge found that there was no
    breach of the appellants ss. 8 or 9
Charter
rights and that the
    seized items should not be excluded from evidence pursuant to s. 24(2).

[3]

The appellant challenges the finding that the arrest and search were conducted
    in circumstances where the police had reasonable and probable grounds to
    believe that the appellant was in possession of marijuana. The appellant also argues
    that the reasons are inadequate, in that they fail to reconcile the differences
    in the testimony given by the two arresting officers.

[4]

We do not accept these submissions. It was open to the trial judge to
    find reasonable and probable grounds for arrest on the basis of Constable Vogelzangs
    observations of the appellant and his evidence that he, an officer experienced
    with investigating offences relating to the possession of marijuana, detected
    the smell of raw marijuana emanating from the appellants car.

[5]

This courts recent decision in
R. v. Morris
, 2013 ONCA 223, at para. 8,
makes it
    clear that while caution must be used in relying on smell evidence, there is
    no legal barrier to its use. The record in this case provided an evidentiary
    basis for the trial judges findings. As a result, we see no error in the trial
    judges conclusion that the officer had sufficient grounds for the arrest.

[6]

As to the submission that the trial judge failed to reconcile the
    evidence of the two officers, in our view, on this record, reconciliation was
    not necessary. Even if we were to assume that the search of the appellants car
    constituted a breach of his
Charter
rights, we agree with the judges
    treatment of s. 24(2).

[7]

Accordingly, we dismiss the conviction appeal.

[8]

The appellant received a sentence of nine months incarceration plus two
    years probation. He does not challenge the length of the sentence, only that a
    conditional sentence would have been fit. Despite the fresh evidence concerning
    the appellants difficult personal circumstances, we see no error in the trial
    judges rejection of a conditional sentence, particularly given the appellants
    antecedents and the amount of marijuana involved.

[9]

Leave to appeal sentence is granted, but the sentence appeal is
    dismissed.

Paul Rouleau J.A.

David Watt J.A.

Gloria Epstein J.A.


