COURT OF APPEAL FOR ONTARIO
Hoy A.C.J.O., MacPherson and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
An Bai Zheng
Applicant/Appellant
Linda Tang, for the appellant
Geoffrey Roy, for the respondent
Heard: April 28, 2014
On appeal from the conviction entered on May 19, 2011 and the sentence imposed on June 20, 2011 by Justice M. Rawlins of the Ontario Court of Justice.
1The appellant seeks to set aside his conviction for possession of a large number of marijuana plants for the purpose of trafficking. He was acquitted on charges of production of marijuana and theft of electricity.
2The appellant also seeks leave to appeal and, if leave is granted, appeals from the sentence of 10 months’ imprisonment (6 months plus 4 months credit for pre-trial custody).
The Facts Led at Trial
3Late one afternoon police officers attended at a house in Windsor in response to a 911 call about gunshots heard at the house. One officer saw a man who turned out to be the appellant open the curtains from inside the house. The officer waved at the man to come out and the appellant emerged, wearing pyjamas and carrying a house key on him. The police took the key and searched the house to see if anyone was inside, injured.
4No one was discovered inside, injured, but the police did discover a large marijuana grow operation. The one-storey house had three bedrooms, a kitchen, an attic and a basement. Only one bedroom appeared to be used as a bedroom. The second was covered in black garbage bags and had large lights, dirt and wires in it. The third bedroom had 200 stacked and empty plant/flower pots and soil on the floor. In the basement, the police discovered 343 potted marijuana plants, along with fans, chemicals, and hoses. A search of the attic revealed a hydro by-pass.
5On a coffee table on the main floor were the appellant’s passport, a citizenship certificate and a 2007 statutory declaration and power of attorney signed by the appellant.
6The appellant was arrested and charged. The police then obtained a search warrant and returned to the house to search it.
7At trial, the appellant did not testify. On the basis of the evidence before her, the trial judge found the appellant to be in possession and control of the house and its contents. She held him to be in constructive possession of the marijuana plants and – since there was no issue that the 343 marijuana plants and the other related paraphernalia were sufficient to satisfy the criteria for “possession for the purposes of trafficking” – therefore guilty of possession of marijuana for the purposes of trafficking. She had a reasonable doubt with respect to production and theft of electricity, however, and acquitted the appellant on those charges.
The Grounds of Appeal
8The appellant raises four grounds of appeal. First, he argues that the trial judge was biased against him, based on a statement the trial judge made during the course of the sentencing proceedings. Secondly, he asserts that the verdict was unreasonable, based on the evidence. Thirdly, he submits that there has been a miscarriage of justice as a result of the incompetence of his trial counsel in failing to call him to testify and in failing to call two other available witnesses to testify. Finally, he says that the sentence imposed was harsh.
9We would not give effect to these grounds of appeal.
Reasonable Apprehension of Bias
10The appellant states that the following statement made by the trial judge during the sentencing proceeding discloses a reasonable apprehension of bias:
THE COURT: I know. You see, you say “Poor me. Poor Mr. Zheng”. You’re lying to officers in Toronto. You’re lying to the Probations Department saying you live in Windsor and so quite honestly, sir, I have very little sympathy for you. You come to our country as an immigrant. You came as a guest who was invited to stay. I would not foul your country and its laws by doing something like this, so why are you doing this to us? Exactly. That’s an aggravating factor sir, the by-pass.
11While the comment was unfortunate, in our view, and would have better been left unsaid, we are not persuaded it would give rise to a reasonable apprehension of bias, as that concept is described in the jurisprudence. It would not have led a reasonable and right-minded person, informed and viewing the matter realistically and practically, and who had thought the matter through carefully, to conclude that the trial judge was biased: see R v. R.D.S., 1997 SCC, [1997] 3 S.C.R. 484, at para. 111. The threshold for a finding of bias is necessarily high because such a finding calls into question the integrity of the administration of justice: R.D.S., at paras. 112, 117.
12Here, the impugned statement was one comment over a three-day trial; it was made during the sentencing proceedings and after conviction; the trial judge acquitted the appellant on two of the three charges he faced. In terms of the sentencing proceedings, there is nothing to suggest that the trial judge treated the fact the appellant is an immigrant or was dishonest with his probation officer as aggravating factors, or that the remark had any impact on the sentence imposed.
13We reiterate that the comment was unfortunate. However, we would not give effect to this ground of appeal.
Unreasonable Verdict
14Nor would we give effect to the submission that the verdict was unreasonable. The appellant was the sole occupant of a house in which a very large marijuana grow operation was discovered – spread through the entire house. Another judge may have come to a different conclusion, but it was open to the trial judge here, on the record before her, to find that the appellant was in control and possession of the premises and had knowledge of the operation and, therefore, was in constructive possession of the marijuana plants.
Ineffective Assistance of Counsel
15The appellant’s main argument is that his trial counsel was incompetent and that this incompetence resulted in a miscarriage of justice and therefore requires a new trial.
The Appellant’s Story
16The appellant filed two affidavits in support of his ineffective assistance of counsel claim, and was cross-examined on them. His trial counsel also filed an affidavit. She was not cross-examined on that affidavit.
17The appellant is a Canadian citizen who came to Canada from China in 1988 and worked in various jobs. He had a home in Toronto but lost it and his personal belongings in a fire in 2007. He then moved around and spent time at various local casinos. There he met a man, Xiao Di, from his hometown in China. Xiao Di loaned him $5,000 which the appellant lost while gambling in the casinos. He then made an agreement with Xiao Di that he would do house chores for Xiao Di at the latter’s house in Windsor (the premises in question) in order to work off the debt and he would receive a further $5,000 from Xiao Di in a year.
18Between February 2010 and February 2011, the appellant spent about two weeks in Toronto and two weeks in Windsor each month. In Windsor he stayed at the house in question, which was rented by Xiao Di and another man. The appellant took care of the yards and occasionally went to Casino Windsor. Xiao Di and his friend came to the house and worked in the basement from time to time and stayed there occasionally. They asked the appellant not to go to the basement, and he did not have keys to the basement, which he believed was locked. He was 61 years old at the time and suffering from asthma. He was therefore too weak to do anything physical other than taking care of the yards.
19With one exception, the thrust of this evidence is similar to what trial counsel says was explained to her during one of her three interviews with the appellant. At paras. 11 and 12 of her affidavit she states:
During the interview Mr. Zheng explained his version of events. He explained that he was brought to Windsor in December of 2009 to be the caretaker of a house that was owned by an individual that he owed money to due to gambling debts. I was advised by Mr. Zheng that he lived at the home and took care of it, up until his arrest. He mowed the lawn in the summer and shovelled snow in the winter. He further advised me that he was aware that “a lot of things” were moved into the house January 29, then to the basement on January 30; although he indicated that he did not assist in transporting the plants. He also advised me that men in uniforms came into the house and changed the pipes. He stated that the electricity, the heating and hot water systems were changed.
Mr. Zheng advised that he was in the house for a year and did nothing with this type of activity. He said that he suspected something illegal and planned to move out at the end of February. He explained that he did not report the activities that he perceived to be illegal because he does not speak English.
20Trial counsel also deposed that Mr. Zheng had not advised her that he travelled back and forth to Toronto monthly and in fact stated that he lived at the house. He never described himself as a guest.
The Appellant’s Case In Respect of Ineffective Assistance of Counsel
21The appellant’s central allegations in respect of his ineffective assistance of counsel claim are these: trial counsel: (i) failed to spend enough time meeting with him in preparation for and at trial; (ii) failed to advise the appellant of his right to testify and of her decision not to call him at trial; (iii) should have called other witnesses who were available for the defence; and (iv) should have sought an adjournment of the trial in order to clarify the issue of the appellants place of residence and, having determined that the appellant was living half time in the residence, should not have abandoned the appellants s. 8 Charter application attacking the police search of the premises. Other allegations advanced by the appellant on this issue need not be addressed because there is simply no basis for them in the record.
The Law
22In R v. Archer, (2005) 293 O.A.C. 56, at paras. 119-21, this Court summarized the principles relating to an appellate court’s analysis of a claim of ineffective assistance of counsel. The appellant must demonstrate: (i) that the material facts in support of the claim have been established on a balance of probabilities, where those facts are contested; (ii) that counsel’s acts or omissions amounted to incompetence; and (iii) that counsel’s ineffective representation caused a miscarriage of justice. Trial counsel’s performance at trial is to be reviewed on a deferential basis because, as this Court said in R v. White (1997), 114 C.C.C. (3d) 225, at p. 247, “even among the most skilled counsel, no two lawyers will defend an accused in the same way”. In Archer, the Court said:
Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289, AT P. 298 (S.C.C.) [Emphasis added.]
23In our view, the appellant’s ineffective assistance of counsel claim cannot meet these criteria.
Meeting with the Appellant
24Trial counsel met with the appellant, with an interpreter, on three separate occasions. Her Legal Aid dockets confirm two of these and she was not cross-examined on her assertion that there was a third.
25The appellant complains that trial counsel did not meet with him for long enough. However, it is not the length of the meetings that counts; it is whether they sufficed for trial counsel to understand the client’s position and for the client to understand the process and issues.
26Here, it is clear from the excerpts from trial counsel’s affidavit cited above that she was aware very early on of the appellant’s version of events, including his statement that he lived at the premises where the marijuana was found. As explained below, it is also clear that there was a full discussion between trial counsel and the appellant concerning his right to testify and the question of the s. 8 Charter application.
27We would not give effect to this allegation.
The Appellant`s Right to Testify
28The ground relating to the appellant`s right to testify cannot succeed either, because the appellant has not met the first of the Archer criteria; he has not established the material facts in support of that claim on the balance of probabilities.
29Trial counsel swore an affidavit in which she denied each of the appellant`s allegations. In particular, she swore that she and the appellant had discussed during a break in the trial – in the presence of an interpreter – “whether or not [he] should testify” and that she advised him not to testify but that it was his decision:
I advised him that based on what he had told me and what he was insisting on testifying to, that he risked being convicted of all counts. I explained again that the test is knowledge and control and given that he wished to testify that he lived there but did not have anything to do with the grow op, but that he knew it was there, he risked being convicted by admitting knowledge and control. I explained to him that at that point, the Federal Prosecutor could only prove that he was in the house at the time they knocked on the door and that by testifying, he would give evidence that he was there for a much longer period of time. I explained to him that it did not matter if he had the keys in his hand or not when he was arrested because he was in the house in his pajamas and clearly staying for at least the night. I further told him that if he admitted that the bedroom was the one that he stayed in, that he risked being convicted of the electrical diversion since a large group of wires were routed right through the closet. I told him he should not testify but that it was his decision. [Emphasis added.]
30This advice cannot be said to have been unreasonable. Indeed, it seems to us to have been sound. As noted earlier, trial counsel was not cross-examined on her affidavit describing her meetings with the appellant.
31In contrast, the appellant’s recollection of what was said in this connection was unclear at best, even allowing for his difficulties with the English language. He conceded that trial counsel had recommended against his testifying because it would only make things worse. He could not remember what he had said when trial counsel advised him not to testify. He did not deny that she had told him it was his decision whether to do so or not.
Other Witnesses
32The appellant also complains that trial counsel failed to call a neighbour of the premises and the landlord of the premises as defence witnesses. In our view this decision fell within a reasonable range of decisions. It is not clear what the evidence of these potential witnesses would have been, but at the very least it would not have detracted from the fact that the appellant was the sole occupant of a marijuana grow house at the time, wearing his pajamas at 5:30 in the afternoon. Indeed, it may well have placed the appellant in the premises for a considerably longer period of time than the Crown was able to prove at that time. This would not have assisted the appellant on the issue of knowledge and control, as trial counsel’s advice referred to above pointed out.
The Section 8 Application
33At the outset of trial, counsel brought an application under s. 8 of the Charter to exclude the evidence obtained by the police through the unwarranted search of the premises just prior to the appellant’s arrest. The trial began on a blended hearing with the voir dire on the Charter application being heard at the same time as the trial evidence. After the evidence pertaining to the voir dire, defence counsel and the trial judge engaged in a discussion about the Charter application and the potential problem of showing the appellant’s status to bring it if he were not a resident. The trial was adjourned for a period of time to enable defence counsel to consult with the appellant.
34Trial counsel, the appellant and an interpreter had a discussion about the application as well as the discussion referred to above concerning the risks of the appellant testifying at trial. Upon resuming, defence counsel abandoned the Charter application.
35The appellant alleges that trial counsel was negligent in not pursuing further information about his residency to enable him to establish standing and to proceed with the Charter application. We do not agree.
36As trial counsel points out in her affidavit, pursuing the s. 8 challenge would require the appellant to assert standing (based on residence) and on the issue of knowledge and control the “[only] evidence adduced at that point put [the appellant] in the house for only a short period of time.” In addition, trial counsel had heard the Crown’s evidence on the voir dire at that point, and was in a position to judge the likelihood of success on the application. We note, as well, that even if the evidence obtained through the unwarranted search had been excluded, the police had returned and one a second search on the basis of a proper warrant. Presumably that search would have yielded the same results.
37Evidence establishing that the appellant was in fact resident in the house would have made the inference that he had the necessary knowledge and control to establish the possession charge much more compelling. In those circumstances, the decision to abandon the Charter application was a reasonable one.
Sentence
38Although the appellant is a first-time offender, the 10-month sentence imposed by the trial judge falls within the range of sentences for similar offences. This was a sophisticated marijuana grow operation, involving at least 343 marijuana plants. See R v. Doan, 2011 ONCA 626; R v. Ha, 2008 ONCA 749; and R. v. Nguyen, 2006 O.J. No. 1745 (C.A.). In any event, we are advised that the sentence has been served.
39In the circumstances, we would not grant leave to appeal sentence.
DISPOSITION
40In the result, the appeal against conviction is dismissed. Leave to appeal sentence is refused.
“R.A. Blair J.A.”
“I agree Alexandra Hoy A.C.J.O.”
“I agree J.C. MacPherson J.A.”
Released: May 01, 2014
