



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Truong, 2019 ONCA 364

DATE: 20190503

DOCKET: C64457

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xing Hung Truong

Appellant

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 officers 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 addicts 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 accuseds 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 accuseds original denial that he intended to
    traffic in the substances, but still not being satisfied by the other evidence
    of the accuseds 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
    accuseds 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 accuseds evidence in this regard did not strengthen the
    Crowns 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 judges 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.


