Court of Appeal for Ontario
Date: 20211105 Docket: C66742
Fairburn A.C.J.O., Doherty and Sossin JJ.A.
Between
Her Majesty the Queen Respondent
and
Xiu Jin Teng Appellant
Counsel: Brian H. Greenspan and Michelle M. Biddulph, for the appellant John Patton and Ken Lockhart, for the respondent
Heard: April 13, 2021 by video conference
On appeal from the conviction entered by Justice I. MacDonnell of the Superior Court of Justice, sitting with jury, on January 11, 2017, and from the sentence imposed on January 13, 2017.
Overview
1In March 2012, the police charged the appellant with murdering her husband, Dong Huang. In January 2017, a jury convicted the appellant of first-degree murder.
2The appellant was not represented by counsel at trial. During jury selection, the appellant made a “Rowbotham” application, asking the court to stay the trial until the Attorney General (Civil) agreed to fund counsel for the appellant. The trial judge dismissed the motion and the trial proceeded. The trial judge’s dismissal of the Rowbotham application is the primary ground of the appeal.
3The appellant advances four additional grounds of appeal. She submits:
- her right to a trial within a reasonable time under s. 11(b) of the Charter was breached and the proceedings should have been stayed;
- the police violated the appellant’s rights under ss. 10(a) and (b) of the Charter and the statements she made while detained by the police in her apartment should have been excluded from evidence pursuant to s. 24(2) of the Charter;
- the trial judge erred in his instructions to the jury on circumstantial evidence; and
- the conviction for first-degree murder was unreasonable.
4In addition to appealing her conviction, the appellant appeals one aspect of her sentence. She submits the trial judge erred in making an order under s. 743.21 of the Criminal Code, R.S.C., 1985, c. C-46, prohibiting the appellant from communicating with her brother-in-law, the victim’s brother. The appellant submits the order was improperly made as she had no notice of the Crown’s intention to request the order and had been excluded from the courtroom during sentencing. The appellant further submits her brother-in-law has court-ordered custody of the appellant’s young daughter and it is essential that the appellant be able to communicate with the brother-in-law about her daughter’s well-being.
5For the reasons that follow, I would dismiss the appeal. The trial judge found that the Rowbotham application was not a bona fide attempt to obtain counsel, but was rather an attempt to derail and delay the trial. That finding was open on the evidence and justified the dismissal of the Rowbotham application.
6I would also reject the other grounds of appeal. In rejecting the s. 11(b) claim, the trial judge properly applied the transitional exception laid down in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The trial judge correctly held the appellant was not detained when questioned in her apartment, meaning her s. 10 rights were not engaged. The jury instruction on circumstantial evidence was complete and correct. The evidence supporting a conviction on the first-degree murder charge was formidable and readily clears the unreasonable verdict standard.
7I would allow the sentence appeal, but only on a narrow point. I would vary the term prohibiting communication with the brother-in-law to provide for an exception permitting communication if that communication was made in accordance with the terms of an order made in the family law proceedings involving the appellant’s daughter.
The Evidence
(i) The Discovery of the Body
8The appellant and her husband, Mr. Huang, lived in a basement apartment with their young daughter. They had been married for about 10 years. The appellant arrived in Canada in 2010.
9Ms. Gu, one of the landlords, went to the apartment on February 29, 2012 to ask for the rent. She asked the appellant about her husband. The appellant told Ms. Gu her husband had gone to Hong Kong two days earlier.
10Later the same day, Ms. Gu became suspicious when it appeared to her that the appellant was moving “a whole lot of stuff” out of the apartment. Concerned that the appellant and her husband were moving out without notification Ms. Gu decided to examine the apartment for possible damage. She and a friend entered the apartment when the appellant was not there. They did not find any damage but the friend did find two feet sticking out from under a blanket in a storage closet in the apartment. There were several boxes on top of the body. Ms. Gu immediately contacted Mr. Wang, her husband.
11Mr. Wang arrived at the apartment a short time later and looked in the storage closet. He removed the boxes and found Mr. Huang’s body wrapped in several blankets. By this time the appellant had returned home. Mr. Wang asked her about the body in the storage closet. She told him that her husband, who had a history of heart problems, had died of a heart attack the previous week. Both the appellant and Mr. Wang called 9-1-1.
12Two police officers arrived at the apartment separately shortly after the 9-1-1 calls. The appellant and Mr. Wang were yelling at each other. The officers separated them and spoke to each individually. The landlord told the officers that the body of the appellant’s husband’s body was in a storage closet. The police looked in the closet and saw the body. The two officers spoke with the appellant separately. She told both of them her husband had died of a heart attack a few days earlier. She told one of the officers she did not know what to do and she told the other officer she had dragged her husband’s body from the bedroom and put it in the storage closet.
13In a statement to the police the next day, the appellant said she found her husband’s dead body in the basement. She thought he might have had a heart attack but did not really know what had caused his death. According to her, she passed out when she found his body.
(ii) The Forensic Evidence
14The doctor who conducted the post-mortem found the following:
- perimortem ligature marks on the deceased’s neck;
- green twine tied loosely around the deceased’s neck;
- perimortem ligature marks, indicating the deceased’s wrists and ankles had been bound before death. The marks were similar to the ligature marks on the neck;
- two significant perimortem blunt force impact injuries on the deceased’s skull, one on the left side and the other on the back of the right side of the skull; and
- a perimortem needle puncture wound on the inside of the deceased’s elbow, a common injection site.
15The pathologist found no evidence of a heart attack. In his opinion, the deceased was strangled to death. Green twine, like that wrapped around the husband’s neck, was found in the apartment. Death occurred between two days and two weeks before the discovery of the body.
16A toxicologist testified that traces of a sedative called Zopiclone, prescribed for insomnia, were found in the deceased’s blood. She could not say whether the amounts found in his blood were consistent or inconsistent with the therapeutic dosage of the drug. Zopiclone is normally taken orally but it can be injected. The puncture mark on the inside of the deceased’s elbow could not be scientifically linked to the presence of the Zopiclone in the deceased’s body.
(iii) The Appellant’s New Apartment
17There was evidence, that in late February 2012, before Mr. Huang’s body was found, the appellant had begun moving items belonging to her, and some children’s toys, into a different apartment in a house not far from where the appellant lived with the deceased. There was no evidence that any of Mr. Huang’s belongings had been moved into that apartment.
(iv) The Life Insurance
18The appellant was licenced to sell life insurance in early 2011. She worked as a financial security advisor (“FSA”) for Freedom 55 Financial, starting near the end of 2010. FSAs are independent contractors and are paid by way of commission on the products they sell. Among other products, Freedom 55 Financial sells life insurance.
19In June 2011, the appellant attempted to purchase a $1.5 million life insurance policy on her husband’s life. That policy named her as the beneficiary. The insurer wanted a higher premium than the appellant offered. That policy never took effect.
20The appellant did, however, purchase two life insurance policies on her husband’s life in late 2011. She was the beneficiary in both policies. The first policy, purchased in October 2011, provided $972,639 in death benefits payable to the appellant. That policy came into effect in November 2011. The second policy, purchased in November 2011, provided $650,000 in death benefits, with an additional $400,000 in the event of accidental death. This policy came into effect in January 2012. At the time of Mr. Huang’s death, the appellant was the beneficiary of two life insurance policies totalling between $1.5 and $2 million.
21It was quite common for persons starting out in the life insurance business to sell policies to friends and neighbours. The appellant earned commissions on the policies obtained on her husband’s life. She also had to pay the premiums on the policies to keep them in good standing.
22An insurer will only pay out on a life insurance policy if there is a death certificate. The insurer will not pay if the beneficiary is responsible for the death, or if there are material misrepresentations made in obtaining the policy. If death occurs within two years of the issuance of the policy, the insurer may conduct a more detailed review of the death before paying on the policy.
23The appellant did not make a claim on either policy. She was charged with murdering her husband within five days of the discovery of his body.
24The appellant did not testify.
Ground #1: Did the trial judge err in dismissing the Rowbotham application (Reasons reported at 2017 ONSC 277)
(i) The Rowbotham Remedy
25In R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 65, 70, this court held that if an accused wants counsel and cannot retain counsel privately, through Legal Aid, or through some other means, the court should, on an application by the accused, stay the proceedings against the accused if the court concludes that representation by counsel is essential to a fair trial as guaranteed under s. 11(d) of the Charter. While the stay does not directly require the state to fund counsel to defend the accused, the stay will only be lifted for all practical purposes if the state provides the necessary funding for counsel: see R. v. Rushlow, 2009 ONCA 461, 96 O.R. (3d) 302, at paras. 14-21.
26On a Rowbotham application, the court, in deciding whether the accused can receive a fair trial without counsel, will consider, among other factors, the seriousness of the charge, the complexity of the evidence, the accused’s familiarity with the process, any mental disorder, and any language or cognitive limitations the accused may have.
27No one suggests the appellant had the means to hire her own lawyer for a lengthy murder trial. Factors relevant to trial fairness, such as the seriousness of the charge, supported the conclusion that the appellant should have a lawyer. In the course of the lengthy proceedings, Legal Aid had provided certificates to two different lawyers and the Attorney General (Civil) had agreed to funding orders on at least two occasions.
28Unlike most Rowbotham applications, this application did not turn on the appellant’s financial status or her ability to obtain a fair trial without counsel. This application turned on the threshold question of the bona fides of the application itself. The trial judge held that the application was not a genuine attempt to obtain counsel funded by the Attorney General (Civil), but was an attempt to avoid a trial on the merits and derail the trial process. The trial judge said, at para. 46 of his reasons for his Rowbotham ruling:
The timing of the application speaks volumes about its true nature. It could have been brought months earlier, as Justice McMahon had urged. It could have been brought at the outset of the trial. Instead, it was brought only after all of the defendant’s other efforts to halt the proceedings had failed. When the timing of the application is put into the context of all that preceded it, there is only one reasonable inference, namely that it was not in reality a funding application but rather only the latest maneuver in the campaign that began on June 30 to prevent the charge against her from being tried on the merits.
(ii) The Standard of Review
29The decision to grant or refuse a Rowbotham application turns on the application of legal principles laid down in Rowbotham to the facts of the particular case. The ultimate decision to grant or refuse the application raises a question of law reviewable on a correctness standard. However, findings of fact upon which the Rowbotham decision is made are reviewable on a more deferential standard: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. This court will reverse findings of fact only if they are unreasonable, based on a material misapprehension of relevant evidence, or a failure to consider or give proper effect to material evidence: R. v. Morrisey (1995), 97 C.C.C. (3d) 193, at p. 221 (Ont. C.A.); R. v. M.C., 2014 ONCA 307, 308 C.C.C. (3d) 318, at paras. 31-33.
30I have no doubt that a judge has the authority to dismiss a Rowbotham application if the judge is satisfied the application has been brought to impede or derail the trial proceedings. A motion brought for those purposes is the very definition of an abuse of process. A trial judge must be able to protect the court from attempts to use the process to defeat the proper administration of justice: see R. v. Amos, 2012 ONCA 334, at paras. 12-22, leave to appeal refused, [2014] S.C.C.A. No. 160; R. v. Phung, 2012 ONCA 720, at paras. 18-34, leave to appeal refused, [2014] S.C.C.A. No. 97; R. v. Al-Enzi, 2014 ONCA 569, at paras. 88-96, leave to appeal refused, [2014] S.C.C.A. No. 405.
31R. v. Amos, R. v. Phung, and R. v. Al-Enzi were all cases in which trial judges ordered an accused on to trial on a first-degree murder charge without counsel. In Amos and in Phung, this court upheld those decisions because the evidence supported the trial judge’s findings that the motions to adjourn to allow the accused to obtain counsel were not bona fides, but were brought for improper ulterior purposes. In Al-Enzi, this court overturned the trial judge’s decision because there was no evidence to support two of the three reasons given by the judge for ordering the continuation of the trial despite counsel’s removal from the record. In addition, this court found the trial judge failed to consider several other relevant factors. In short, applying the standard of review applicable to factual findings, this court found the findings wanting and set aside the order predicated on those factual findings.
32Mr. Greenspan, for the appellant, submits that this case is similar to Al-Enzi. Mr. Patton, for the Crown, contends it is much more like Amos or Phung.
(iii) The History of the Proceedings
33To assess the trial judge’s finding that the Rowbotham application was brought for an ulterior and improper purpose, it is necessary to review some of the lengthy history of this proceeding, particularly the events from June 30, 2016 forward. As the trial judge did, I divide the chronology into four segments:
- The proceedings before June 30, 2016;
- The proceedings on June 30, 2016;
- The proceedings between June 30, 2016 and the commencement of the trial in October 2016; and
- The proceedings at trial.
(a) The Proceedings Before June 30, 2016
34The appellant was charged with first-degree murder in March 2012. She retained the law firm of Hicks Adams through Legal Aid. In May 2012, the appellant discharged that firm and sought to retain Mr. Rosen. He undertook to represent the appellant, assuming Legal Aid would approve the transfer of the Legal Aid certificate to him. By September 2012, Mr. Rosen had obtained the necessary approval from Legal Aid and had agreed to several dates between March and May 2013 for what was anticipated to be a 15-day preliminary inquiry.
35In January 2013, about two months before the preliminary inquiry was to commence, the appellant discharged Mr. Rosen. Mr. Rosen was given no forewarning of, or any explanation for, his dismissal. He advised the appellant that Legal Aid would have to approve a second transfer of her certificate. The appellant told him she did not need Legal Aid and had a lawyer, Mr. Bains. The appellant refused to sign Mr. Rosen’s termination letter.
36Mr. Bains was present in court. He indicated he was not available on the dates scheduled for the preliminary inquiry, and that there was no chance the appellant would be able to retain him privately.
37In subsequent proceedings, Mr. Bains declined to set target dates for the preliminary inquiry until funding issues with the Attorney General (Civil) were resolved. Those issues appeared to have been resolved by May 2013. In August 2013, new preliminary dates were scheduled for July and August of 2014.
38The appellant was committed for trial in August 2014. Mr. Bains continued to act for her. The appellant made her first appearance in Superior Court in September 2014. In November 2014, a trial date in September 2015 was set. The parties anticipated a six-week trial.
39On September 1, 2015, about two weeks before the six-week jury trial was to begin, Mr. Bains applied to be removed from the record, citing ethical reasons for his inability to continue to act for the appellant. The presiding judge removed Mr. Bains from the record and vacated the September 2015 trial dates.
40On September 4, 2015, counsel for the Attorney General (Civil) confirmed that it would continue to fund counsel for the appellant, adding that the appellant had been put on notice that any further breakdown in her relationship with counsel would require that the Attorney General revisit the commitment to fund counsel. The appellant was provided with the names of several possible lawyers. The appellant indicated she understood there was no guarantee the Attorney General would continue to fund counsel if, at some point, the appellant desired yet another different lawyer.
41On October 2, 2015, Mr. Nuttall appeared and indicated he had consulted with the appellant. A trial date of November 2, 2015 was available, although it was not clear that Mr. Nuttall was available at that time. The appellant indicated she did not want to be represented by Mr. Nuttall.
42In October 2015, Mr. Richardson and Mr. Moore appeared on behalf of the appellant. They asked for a brief adjournment before setting a trial date. The earliest available dates were in September 2016. Crown counsel on the case was not available until October 2016. Justice McMahon set a trial date of October 31, 2016.
43On November 17, 2015, Mr. Richardson indicated that the funding agreement was in place and that he and Mr. Moore would be acting for the appellant at trial.
44The matter was spoken to several times between January and June 2016. In April 2016, Mr. Moustacalis appeared for the appellant and indicated he was replacing Mr. Richardson as co-counsel with Mr. Moore. On June 3, 2016, the appellant indicated she wanted Mr. Moustacalis removed as one of her counsel. Mr. Moore remained on the record.
(b) The June 30, 2016 Appearance
45The matter came back before Justice McMahon in assignment court on June 30, 2016. Mr. Moore was on the record for the appellant.
46Shortly before the appearance on June 30, 2016, Mr. Moore had served the appellant with an application to be removed from the record. Mr. Moore brought the application to be removed from the record only because the appellant had refused to sign the funding agreement with the Attorney General (Civil) naming Mr. Moore as counsel. Unless the appellant signed, Mr. Moore would not be paid for his defence of the appellant.
47At the June 30, 2016 hearing, McMahon J. asked the appellant to indicate whether she would sign the funding agreement. The appellant expressed no concerns about her relationship with Mr. Moore or the quality of his services. She indicated she was concerned about delays in the pretrial and that she had just received Mr. Moore’s application to be removed from the record. McMahon J. explained that there had been no delay in the pretrial proceedings and that Mr. Moore was content to act for the appellant if she signed the funding agreement, so he could be paid, but if she did not sign the agreement, he wanted to be removed from the record.
48Mr. Moore told McMahon J. that the funding agreement also required the appellant to undertake not to retain any counsel other than Mr. Moore, and that if she discharged Mr. Moore, she would agree to the appointment of amicus. Mr. Moore indicated that he understood that the appellant wanted Mr. Moore as one of her lawyers, but she did not want him to be lead counsel. The appellant confirmed Mr. Moore’s understanding. [1]
49A lengthy dialogue between McMahon J. and the appellant followed. McMahon J. summarized the situation and repeatedly told the appellant her options. He asked her to indicate whether she was prepared to sign the funding agreement. The appellant answered McMahon J.’s questions with different questions. She mentioned that she had spoken to two potential lawyers.
50Counsel for the Attorney General (Civil) briefly summarized the funding that had been provided to the appellant over the years. He said:
At this point, we’re not prepared to fund any further counsel for Ms. Teng.
51McMahon J. once again summarized the situation for the appellant. He told her that if she did not sign the funding agreement, he would grant Mr. Moore’s request to be removed from the record. He also told the appellant she could try to get another lawyer, but given the history of the matter, and the position of the Attorney General (Civil), she could end up unrepresented at trial on October 31, 2016. McMahon J. adjourned the proceeding to allow the appellant to consider her position and consult with Mr. Moore if she wished to do so. He made it crystal clear that he needed an answer to his question – would the appellant sign the funding agreement?
52When court reconvened, the appellant continued to refuse to indicate whether she was prepared to sign the funding agreement. She continued to answer McMahon J.’s straightforward question with different questions. After McMahon J. had tried once again to get an answer to his question, and the appellant had responded with more questions, McMahon J. said:
I’ve made it clear at least on five occasions this morning you either can have Mr. Moore as your lawyer and the government will pay for it or – and sign it – or don’t sign it. He will be removed as your lawyer and you can try to bring an application to have another lawyer act for you, but I am telling you that there is a risk in doing that, that you may have to represent yourself at trial. So those are the two options, your decision.
53The appellant continued to avoid the question. McMahon J. repeated her options. He said:
Okay, Ms. Teng, as I’ve said many times this morning, it is in your best interest to be represented at your trial by an experienced criminal lawyer. If you select Mr. Moore, you will have a guaranteed experienced criminal lawyer to defend you. If you decide not to have Mr. Moore, you may or may not have any lawyer at your trial. So if you want to be guaranteed of having a lawyer who’s an experienced criminal lawyer represent you at trial, then having Mr. Moore would make sense. It is for you to decide. I can’t make the decision for you. I can just explain the options.
54Finally, the appellant answered McMahon J.’s question, indicating she would not sign the funding agreement “today”. When the trial judge stated, “Ms. Teng elected not to sign it”, the appellant immediately responded, “I was forced by your influence”. McMahon J. corrected the appellant’s misstatement, indicating it was entirely up to her.
55Mr. Moore was removed from the record. The appellant was unrepresented from this time forward.
(c) Proceedings Between June 30, 2016 and the Commencement of the Trial in October 2016
56On July 7, 2016, the appellant was back before McMahon J. When he indicated she had discharged Mr. Moore, the appellant immediately challenged the trial judge, indicating she had not discharged Mr. Moore. She mentioned the two counsel she had identified at the June 30, 2016 proceeding, but said they were not coming to court to represent her before they were paid. McMahon J. adjourned the matter to July 19, 2016 to allow Ms. Teng to attempt to have counsel appear for her.
57On July 19, 2016, McMahon J. indicated that Mr. Baum had advised the court he was prepared to bring a Rowbotham application on behalf of the appellant. He had apparently faxed a copy of the application to the Crown. McMahon J. asked the appellant if she wanted Mr. Baum to bring a Rowbotham application. As occurred on June 30, 2016, the appellant did not answer the direct, simple question posed by McMahon J. Instead, she raised different, unrelated matters concerning certain transcripts, and the quality of the interpreter that had been provided for her in the proceedings before McMahon J.
58McMahon J. appointed Mr. Litkowski as amicus. The appellant said she was totally opposed to amicus working for her. McMahon J. explained the role of amicus. He adjourned the proceeding to allow the appellant to speak with Mr. Litkowski.
59After Mr. Litkowski spoke with the appellant, he advised the court that the appellant had requested a copy of the recent decision of the Supreme Court of Canada in R. v. Jordan. The decision had been released about a week earlier. The appellant had decided to bring a s. 11(b) application and was in the process of preparing her affidavit in support of that application.
60McMahon J. expressed concern that if there was to be a Rowbotham application, it should be heard as soon as possible, given the pending October 31, 2016 trial date. Mr. Litkowski could only indicate the appellant “seemed to be agreeable” to Mr. Baum bringing a Rowbotham application. The appellant did not tell McMahon J. she wanted Mr. Baum to bring a Rowbotham application. There is no evidence she ever instructed Mr. Baum to bring an application even though she knew he had prepared the necessary documentation as early as mid-July 2016.
61The appellant appeared in assignment court on a regular basis in July and August 2016. There was some indication in early August that she would be bringing her Rowbotham application on August 26, 2016. August 26 came and went. No Rowbotham application was made.
62In an appearance on September 6, 2016, the appellant indicated she had another lawyer who was prepared to bring a Rowbotham application. That application was tentatively scheduled for September 28, 2016. McMahon J. indicated that if the application was successful, the trial might be adjourned briefly to January 2017. September 28 came and went. No Rowbotham application was made.
63At subsequent proceedings, there was a suggestion Mr. Kerbel would bring a Rowbotham application on October 12, 2016. No application was brought.
64In her many appearances before McMahon J. between the end of June and late October 2016, the appellant was primarily concerned with her s. 11(b) motion. In her dialogue with McMahon J., she demonstrated a firm grasp on the rules applicable to s. 11(b) motions and the materials needed for those motions.
(d) Proceedings at Trial Commencing on October 31, 2016
65On October 31, 2016, the first day of the trial, the appellant brought a s. 11(b) motion. She was assisted in the preparation of the material and the argument of the motion by amicus. On November 3, 2016, the trial judge dismissed the motion. He provided written reasons shortly afterwards: R. v. Teng, 2017 ONSC 568.
66On November 3, 2016, the appellant indicated she was being denied her right to a lawyer. She refused to indicate whether she was requesting an adjournment of the trial and declined to participate in the proceeding because she did not have a lawyer. The trial judge took the appellant’s submissions as a request for an adjournment because she could not have a fair trial without a lawyer. The trial judge indicated he had determined in his earlier ruling that the appellant was not actually interested in having a lawyer, but wanted to delay and derail the proceedings. He indicated the proceedings would continue. At the same time, the trial judge set out the parameters for the involvement of amicus. The appellant was opposed to any involvement by amicus.
67On November 7, 2016, the appellant indicated she had applied to the Court of Appeal for leave to appeal the dismissal of the s. 11(b) motion. The appellant argued that the trial was stayed by virtue of her application to the Court of Appeal. The trial judge refused to stay the trial.
68Pretrial motions brought by the Crown proceeded between November 7 and 10, 2016. When the trial judge inquired as to whether the appellant intended to challenge jurors for cause or peremptorily, the appellant explained that she needed glasses to be able to “look upon” the perspective jurors. The trial judge offered to arrange for the appellant to sit where she had a better view of the prospective jurors, but the appellant declined the trial judge’s invitation.
69On November 14, 2016, the appellant took the position that the jury selection could not proceed, as she did not have a lawyer. The trial judge indicated jury selection would proceed on November 17, 2016.
70On November 15, 2016, the appellant produced a notice of application to quash several search warrants and production orders. There had been no indication at any time during the litigation that the validity of the warrants and the production orders would be challenged. The appellant claimed that jury selection could not proceed until the motion to quash the warrants and production orders had been heard and decided. She told the trial judge she needed time to prepare her application record and factum. The trial judge ruled that any motion to quash the warrants or production orders would be heard after jury selection, and that jury selection would proceed as scheduled on November 17, 2016.
71After the trial judge indicated the motion to quash the warrants would not delay jury selection, the appellant told the trial judge, for the first time, that she wished to bring a Rowbotham application. According to her, there were many lawyers willing to act for her.
72Jury selection proceeded on November 17, 18 and 21, 2016. On the morning of November 21, 2016, the appellant renewed her s.11(b) application. The trial judge dismissed the motion. The appellant then filed a written Rowbotham application. The application did not identify any lawyer who was prepared to act for the appellant and no one appeared for the appellant or communicated with the court or the Crown. The trial judge dismissed the Rowbotham motion on November 22 and provided written reasons shortly afterwards: R. v. Teng, 2017 ONSC 277.
73The trial proceeded over some 20 days to a verdict in January 2017. The appellant was unrepresented throughout the trial. Mr. Litkowski acted as amicus throughout the trial.
(iv) The Trial Judge’s Findings of Fact on the Rowbotham Application
74The trial judge made three important findings of fact:
- The appellant “engineered” the “constructive dismissal” of Mr. Moore on June 30, 2016 (Reasons, at paras. 39, 41).
- The appellant failed to “make any meaningful effort to retain any other counsel” to replace Mr. Moore between June 30 and the commencement of the trial on October 31 (Reasons, at paras. 39, 43).
- The appellant’s actions were motivated by her desire to avoid a trial on the merits (Reasons, at paras. 41, 44).
75The finding the appellant took no meaningful steps to obtain counsel between Mr. Moore’s removal from the record on June 30, and the commencement of trial at the end of October, is unassailable. Although several dates were set for the Rowbotham application, no application was ever brought, even though to the appellant’s knowledge Mr. Baum had prepared the necessary material by the middle of July 2016.
76As the trial judge pointed out, the appellant made no reference, even after the trial had started, to the possibility of a Rowbotham application until several other efforts by her to abort or delay the commencement of the trial had failed: Reasons, para. 45. At no time during the trial proceedings did the appellant identify a lawyer who was prepared to act at trial for her, or even prepared to bring a Rowbotham application on her behalf.
77It is also significant that McMahon J. expressly told the appellant on June 30 that she could bring a Rowbotham application if she did not want to sign the funding agreement put forward by the Attorney General (Civil). If, as is submitted on appeal, the appellant’s real concern was that funding should provide for two and not just one lawyer, the appellant could very easily have sought that relief in a Rowbotham application. I have no doubt that Mr. Moore would have assisted the appellant in that regard. Instead, the appellant chose to take no steps to obtain a Rowbotham order before the trial started. Even when the trial started, the appellant did not seek a Rowbotham order, but repeatedly claimed she could not get a fair trial without a lawyer.
78The trial judge’s finding, that the appellant had engineered the removal of Mr. Moore on June 30, is also supported by the evidence. The appellant chose to refuse to sign the funding letter, having repeatedly been advised by McMahon J. that Mr. Moore would be removed from the record, and she could well find herself unrepresented at trial.
79In the proceedings on June 30, the appellant gave two reasons for not signing the funding agreement. Viewed reasonably, neither had any merit. It was only after Mr. Moore indicated the appellant did not want Mr. Moore as her lead counsel that the appellant advanced this explanation for refusing to sign the funding agreement.
80As explained above, even if the appellant’s desire to have two lawyers could explain her refusal to sign the funding agreement, it offers no explanation for her failure to take any steps to have the court determine whether the funding of two lawyers was essential to a fair trial. The appellant could have brought a Rowbotham application immediately seeking a stay unless the government agreed to fund two lawyers. She brought no such motion and there is no evidence she ever made any inquiries of anyone about the possibility of an application to secure funding for two lawyers. It is a fair inference from the appellant’s actions that she was quite content to be without counsel from June 30 to the commencement of her trial.
81The trial judge’s finding that the decision to engineer the removal of Mr. Moore on June 30 and the decision to take no meaningful steps to obtain counsel before jury selection were motivated by a desire to avoid trial on the merits is also supported by the evidence. The appellant knew full well, from prior events in the proceedings, that the removal of counsel near a scheduled hearing date could result in lengthy delays of the proceedings. The preliminary inquiry had been delayed by 15 months when the appellant fired Mr. Rosen shortly before the preliminary inquiry was to commence. The trial had been delayed by 13 months when, shortly before the scheduled trial date, Mr. Bains had to be removed from the record for ethical reasons.
82Had the appellant’s last-minute Rowbotham application succeeded, jury selection would have been aborted, and the trial would inevitably have been delayed for many months while funding was re-negotiated, new counsel was retained, and new trial dates were found and fixed. Nor was there any reason to believe the appellant would have actually retained counsel and been prepared to go to trial with that counsel on any subsequent trial date.
83Counsel for the appellant submits that it made little sense for the appellant to try and delay her trial. She was in custody, and would presumably remain there, as long as her trial was pending.
84The strength of the Crown’s case on the murder charge may provide one explanation for the appellant’s desire to avoid a trial on the merits. The record also demonstrates the appellant was keenly aware of the Supreme Court of Canada’s decision in R. v. Jordan. It may be that, from the appellant’s perspective, any further delay could only add fuel to the s. 11(b) claim she had decided to bring. If that claim succeeded, she would, of course, avoid a trial on the merits. As Moldaver J. observed in Jordan, at para. 21:
[W]e recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings.
85Counsel for the appellant also submits, that even if the trial judge correctly concluded the appellant brought the Rowbotham application to delay and derail the trial, the trial judge was still required to consider whether the appointment of counsel was necessary for a fair trial and, if it was, make a Rowbotham order. The appellant argues that fair trial concerns, and not the appellant’s motivation for bringing the Rowbotham application, should have drove the result on the application.
86I disagree. To address a motion on its merits, having found that the motion was brought to delay and derail the proceedings, could only be seen as condoning a grave abuse of process. Furthermore, the appellant’s motive for bringing the Rowbotham application cannot be divorced from the merits of the application. On the trial judge’s findings, the appellant did not want counsel. She wanted a reason to delay the trial. It is difficult to understand how one should assess the significance of counsel to the conduct of a fair trial in the face of a strategy which contemplates using the absence of counsel to avoid going to trial.
87Counsel for the appellant next argues, that by agreeing to fund the appellant’s defence, the Attorney General (Civil) effectively acknowledged the appellant could not get a fair trial without counsel. Counsel for the appellant describes this as a “concession by the Crown” which compels the conclusion counsel was essential to a fair trial for the appellant.
88While the determination by the Attorney General (Civil) at an earlier stage in the proceeding that an accused should receive funding may have relevance to a judge’s determination of a Rowbotham application brought at a later stage in the proceeding, it had no relevance to the issue on which this particular Rowbotham application turned. On the trial judge’s findings, this application had nothing to do with securing counsel for the purposes of ensuring a fair trial.
89I would not interfere with the material findings of fact made by the trial judge on the Rowbotham application. On those findings, the application was not a genuine attempt to secure counsel, but was rather an attempt to avoid a trial on the merits. The motion was an abuse of process and the trial judge properly dismissed it on that basis.
(v) Did the Appellant Receive a Fair Trial?
90Counsel correctly contends, that even if the Rowbotham motion was properly dismissed, the accused is entitled to a fair trial and can challenge the fairness of that trial on appeal. The fairness of the appellant’s trial must, however, be assessed in light of the tactical decisions made by the appellant, including her decision to use the absence of counsel to attempt to delay or derail the trial.
91The trial was fair. The trial judge was acutely aware of the need to ensure that the accused received a fair trial. He also appreciated that the absence of counsel placed an added burden on him to protect the appellant’s fair trial rights. The trial judge took extraordinary steps to do so, including the appointment of a very experienced amicus, whose involvement in many facets of the trial helped to ensure that the Crown’s case was properly tested and arguments available to the defence were properly put before the court.
92The trial judge not only provided detailed explanations to the appellant of rulings he made and procedures to be followed, he also provided written explanations for many of the procedures. He offered various accommodations to the accused. For example, he suggested that evidence the appellant claimed she wanted to lead in her defence from witnesses who were not available could be placed before the jury by way of the preliminary inquiry transcripts of some of those witnesses.
93Unfortunately, as the trial progressed, the appellant became progressively more abusive toward the trial judge. She deliberately obstructed his efforts to conduct a fair and orderly trial. She made statements before the jury she had been expressly told she could not make. She refused to answer reasonable questions put to her by the trial judge which were obviously intended to assist the trial judge in ensuring that the appellant received a fair trial.
94The various exchanges between the trial judge and the appellant concerning potential defence witnesses provides a good example of the trial judge’s patient, if not dogged, attempts to take all reasonable steps to assist the appellant and the appellant’s refusal to accept that assistance. The trial judge’s instructions to the jury when he was eventually forced to remove the appellant from the courtroom during his jury instructions epitomized the fairness with which the trial judge conducted this very difficult trial.
95The appellant used an interpreter at times during the trial, as she was entitled to do. Nothing on the record, however, suggests any deficiencies the appellant may have had with the English language interfered with her ability to obtain a fair trial. She cross-examined witnesses in a manner that displayed her grasp of the evidence and the applicable rules governing questioning of witnesses. For example, her cross-examination of the pathologist went directly to important points for the defence.
96Several exchanges during the trial indicate the appellant was able to follow the evidence being given in English. On several occasions, she intervened to ask that a sentence or two from a witness be repeated, as the interpreter had fallen slightly behind in providing an interpretation of the evidence.
97The appellant addressed the jury in closing argument at great length. Most of her argument was in English. It was coherent and directed to the issues in the case.
98The appellant’s many exchanges with the trial judge and McMahon J. indicate that she understood very well what was being said to her and was very capable of responding to those comments and setting out her position. She had obviously informed herself with respect to court procedures. She knew the kind of material that had to be filed in respect of various motions, she was able to generate that material expeditiously, and she understood the issues raised in those motions.
99The appellant also understood what was being said to her by McMahon J. and the trial judge. On many occasions, she corrected both when she believed they had misstated or misrepresented something to her. Her corrections demonstrate an appreciation of distinctions, including legal distinctions that were sometimes relatively subtle. The appellant was clearly not intimidated by the proceedings and was in no way reluctant to speak her mind and advance her position.
(vi) Conclusion
100The trial judge properly dismissed the Rowbotham application and the appellant received a fair trial.
Ground #2: The Section 11(b) Claim (Reasons reported at: 2017 ONSC 568)
101Fifty-seven and one-half months passed between the arrest of the appellant and the scheduled completion of her trial. At the outset of her trial, the appellant brought a motion claiming that her right to a trial within a reasonable time had been violated. She sought a stay of proceedings. The trial judge dismissed the motion. The appellant re-argued the motion, again unsuccessfully, before the trial actually started.
102The trial judge gave detailed reasons. He concluded that large parts of the total delay (57.5 months) were attributable to the conduct of the defence and should be deducted from the total delay for the purposes of the s. 11(b) analysis. The trial judge was, however, prepared to assume the net delay remained slightly over the 30-month presumptive ceiling set down in Jordan: Reasons, at paras. 82, 126. The burden therefore shifted to the Crown to demonstrate the delay was not unreasonable.
103The Crown relies on the transitional exceptional circumstance outlined in Jordan. That exceptional circumstance will apply where the delay preceded the release of Jordan in July 2016, and it can be inferred that the parties placed reasonable reliance in the conduct of the case on the law as laid down in the pre-Jordan jurisprudence, particularly R. v. Morin, [1992] 1 S.C.R. 771: see Jordan, at para. 96; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 67-69.
104There is no reason to think the parties did not rely on the pre-Jordan interpretation of s. 11(b). The question is whether the delay could be said to be reasonable under the analysis laid down in Morin. The trial judge conducted a detailed Morin analysis: Reasons, at paras. 84-125.
105The appellant submits the trial judge made two errors in his Morin analysis. First, she claims he wrongly attributed certain delays to the defence. I do not accept that submission. Specifically, the appellant argues that much of the delay in the provincial court was caused exclusively by Legal Aid and/or the Attorney General (Civil), who were unnecessarily slow in providing funding for the appellant’s new lawyer.
106There was no evidence of any unnecessary delay by the authorities in considering the appellant’s third request for funding. The appellant went through three lawyers before she got to the preliminary inquiry. She was aware that with each lawyer she fired it would become more difficult for her to obtain public funding for yet another lawyer. Her decision to unilaterally, and without warning or explanation, fire Mr. Rosen meant that the dates for the preliminary inquiry set by Mr. Rosen were lost and new dates had to be set to accommodate new counsel. This led directly to a delay of some 15 months. I agree with the trial judge’s analysis of the delay caused by the discharge of Mr. Rosen shortly before the preliminary inquiry was to commence: Reasons, at paras. 65-69.
107The appellant also submits the trial judge failed to give adequate weight to the actual prejudice suffered by Ms. Teng during the delay. She was in custody throughout, sometimes in somewhat difficult circumstances. The appellant submits the trial judge wrongly took into account the appellant’s desire to avoid trial when assessing whether the delay in her trial resulted in any actual prejudice.
108Again, I cannot agree. Surely, the “exquisite agony” (see R. v. Askov, [1990] 2 S.C.R. 1199) said to be experienced by persons awaiting trial cannot be attributed to persons who are actively engaged in an attempt to manipulate the proceedings so as to avoid going to trial. The trial judge correctly held that prejudice caused to the appellant’s liberty interest while awaiting trial must be assessed in the context of the specific circumstances, including the reason for any delays in bringing the appellant to trial: Reasons, at para. 111.
109The trial judge properly dismissed the s. 11(b) application.
Ground #3: The Alleged Breach of Section 10 of the Charter
(i) Overview
110Both the appellant and Mr. Wang called 9-1-1 after Mr. Wang confronted the appellant about the body he had found wrapped in blankets in the closet. The appellant first told the 9-1-1 operator her husband had died several days ago. She next said he had died two days earlier. The appellant told the operator she did not know the cause of death. The appellant was still speaking to the 9-1-1 operator when two police officers arrived. Officer Kumar arrived first, followed shortly afterward by Officer Shearer. The appellant spoke to both officers separately and made brief statements.
111At trial, the appellant argued the Crown had failed to prove the statements were voluntary and that the police had violated the appellant’s rights under s. 10(a) and s. 10(b) of the Charter. Amicus argued the statements should be excluded for either or both of those reasons. The trial judge rejected both arguments and ruled the statements admissible: R. v. Teng, 2017 ONSC 567.
112On appeal, the appellant relies only on the alleged Charter breaches. The rights created by s. 10(a) and s. 10(b) are triggered by a detention. The question is whether the appellant was detained when she was questioned at her apartment by Officer Kumar, or Officer Shearer. If she was, she was entitled to be told the reason for her detention (s. 10(a)), and advised of her right to retain and instruct counsel (s. 10(b)).
(ii) The Evidence
113When Officer Kumar arrived at the appellant’s apartment, the appellant and the landlord were yelling at each other. Officer Kumar separated the two and directed the appellant into the bedroom.
114Officer Kumar spoke first with the landlord. Initially, Officer Kumar understood the problem to be related to landlord/tenant concerns. However, the landlord told him the appellant was hiding her husband’s body in the storage area. Officer Kumar confirmed there was a body under some blankets in the storage closet.
115Officer Kumar’s evidence about his state of mind as the situation unfolded and his understanding of the appellant’s status when he questioned her, was, as the trial judge noted, confusing: Reasons, at para. 34. According to Officer Kumar, finding the body in the storage closet covered in boxes was suspicious. He was concerned that a crime had been committed. He did not know how the husband had died and he did not know what role, if any, the appellant may have played. As far as Officer Kumar was concerned, the appellant may have been involved in his death, or she may have been a victim, or a witness. Officer Kumar also testified that the appellant would not have been allowed to leave the apartment, had she attempted to do so, until the police had a better understanding of the situation.
116When Officer Shearer arrived, Officer Kumar was speaking with the landlord. Officer Shearer spoke with the appellant. Officer Shearer described the situation as chaotic. He said he was trying to figure out what was going on. Officer Shearer did not know whether any crime had been committed and he did not believe he had any grounds to arrest or detain the appellant. Officer Shearer asked the appellant what happened. In his mind, the follow-up questions were the kind of questions he asks when he arrives at the scene in response to a 9-1-1 call.
117The appellant told Officer Shearer her husband had died of a heart attack the previous Friday. She said he had many heart attacks. The appellant also told Officer Shearer she had taken the body from the bedroom and put it in the storage area.
118Shortly after Officer Shearer spoke with the appellant, Officer Kumar spoke with the appellant. He asked her for her identification and she produced a health card. He asked her what happened and she gave him much the same information as she had provided to Officer Shearer.
119The appellant made no attempt to leave the apartment. It is fair to say, however, that neither officer would have allowed the appellant to leave after the body was found without first speaking with the officers.
(iii) Was the Appellant Detained?
120Not every limitation imposed by the police on the physical movements of an individual amounts to a detention for the purposes of s. 10. Detention under s. 10 refers to a suspension of an individual’s liberty by a significant physical or psychological restraint: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 26, 36, 44; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 24, 31; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 21.
121There is no doubt that the appellant’s movements within her apartment were curtailed by the police after they arrived. She was placed in a bedroom to separate her from the landlord. One of the officers also asked her to sit at the kitchen table. She was seated at the table when she spoke to Officer Kumar.
122The limitations on the appellant’s movements, however, occurred in the context of the police arriving at her apartment in response to a 9-1-1 request from both the appellant and the landlord. Having arrived at the scene with a dead body seemingly secreted in a storage room, the police were understandably attempting to control the scene and sort out the somewhat chaotic and very unusual situation they had encountered. The first order of priority for the police arriving in response to the 9-1-1 call was not to investigate a crime, or target the appellant, but to gain control of the situation.
123The trial judge correctly concluded the appellant was not physically detained by the police: Reasons, at paras. 43-46. The police had been called to the apartment by the appellant and the landlord. They had to sort out the situation they encountered, at least in a preliminary way. To do so, the police had to gain control over the scene, including the appellant and the landlord who appeared to be angry with each other. The police had to separate them and make inquiries about the reasons for their 9-1-1 calls: see Suberu, at paras. 29-32.
124The appellant focuses primarily on her claim that she was psychologically detained when questioned by the police. The trial judge, at para. 32 of his reasons, relying on Grant, at para. 44, described psychological detention as:
[E]stablished either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
125There is no suggestion the appellant had any legal obligation to speak with the officers. The appellant submits, however, that a reasonable person in her circumstances would perceive that she had no choice but to answer the officers’ questions. Consequently, her liberty was sufficiently compromised to require the constitutional protections in s. 10.
126Grant, at para. 44, organizes the circumstances and factors relevant to whether a person is psychologically detained into three groups:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
127The appellant accepts that the trial judge properly addressed the circumstances and factors in the first two categories set out above: Reasons, at paras. 47-48. The appellant submits, however, the trial judge failed to consider two specific characteristics of the appellant that were relevant to how a reasonable person in the appellant’s circumstances would perceive her interaction with the police. The appellant contends that her “rudimentary English skills” and her status as a non-citizen were personal characteristics that should have been attributed to the hypothetical reasonable person when assessing whether a reasonable person in the appellant’s shoes would have felt an obligation to answer the questions posed by the police.
128In his reasons, the trial judge did not refer to the appellant’s facility in the English language or her immigration status as relevant to whether she was detained when questioned by the police. The argument made on appeal as to the relevance of those factors was not raised at trial.
129Although the submission made on behalf of the appellant focused specifically on the appellant’s English language skills and her status as a non-citizen, [2] I take the submission more broadly, as referring to the appellant’s status as a racialized person with less than a full command of the English language, who had recently arrived in this country. The appellant did not introduce social context evidence or ask the court to take judicial notice of any relevant facts. However, I will assume that in certain situations those features will be relevant to whether a reasonable person in the appellant’s circumstances would regard herself as obliged to comply with the directions or demands of the police. For example, those features could be relevant if the police encountered that individual on the street and asked her questions about where she lived and where she was going.
130The encounter between the appellant and Officers Kumar and Shearer was, however, far removed from the street encounter described in the above example. The appellant called 9-1-1 for assistance and reported that her husband’s body was in the apartment. By placing the call, she clearly expected and wanted the police to come to her house in connection with her husband’s death. When the police officers arrived, they acted in a professional and non-threatening manner. They asked exactly the kinds of questions one would expect the officers to ask in that situation. In those circumstances, I see no basis upon which to find that the appellant’s status as a recently-arrived, racialized person, who has less than a full command of the English language, would have any effect on her perception of her interaction with the officers who arrived in response to the 9-1-1 calls.
131The trial judge correctly ruled the statements admissible.
Ground #4: The Instruction on Circumstantial Evidence
132The appellant acknowledges the trial judge’s general instructions on circumstantial evidence were appropriate. She submits, however, that in reference to the circumstantial evidence relevant to the issue of planning and deliberation, the trial judge failed to tell the jury that it must consider and reject other inferences before drawing the inference of planning and deliberation.
133I see no error in the trial judge’s instructions. He told the jury:
In considering these circumstances in relation to the issue of planning and deliberation, you must take into account of course, that each of them may give rise to inferences other than the killing of Mr. Huang, other than that the killing of Mr. Huang was planned and deliberate.
134The trial judge had reviewed the inferences inconsistent with planning and deliberation, both when explaining the concept of motive to the jury and again when outlining the position of the defence.
135The appellant points out that the instruction on circumstantial evidence, as applied to after-the-fact conduct, stressed that the evidence could be used to infer guilt only if other explanations were rejected. The appellant submits that the absence of a similar explicit instruction in respect of the circumstantial evidence relevant to planning and deliberation may have led the jury to conclude that it could find planning and deliberation even if it did not reject other explanations for the evidence relied on by the Crown.
136I disagree. In keeping with the authorities, the trial judge’s instruction on after-the-fact conduct, a kind of circumstantial evidence, stressed the need to consider other possible explanations before drawing the inferences urged by the Crown: see R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 116-17 (per Martin J., in dissent, but not on this point). The instruction did not, however, detract in any way from the trial judge’s general instructions on circumstantial evidence, or his instructions on how the jury should approach the circumstantial evidence relevant to planning and deliberation. If anything, the trial judge’s instructions on after-the-fact conduct evidence would tend to emphasize what the trial judge had said in other parts of his instructions about circumstantial evidence.
137The trial judge did not err in his instructions on circumstantial evidence.
Ground #5: Was the Conviction on the Charge of First-Degree Murder Unreasonable?
138The Crown alleged that the murder was first-degree murder because the appellant had planned and deliberated on the murder. The trial judge instructed the jury on planning and deliberation. No exception is taken to that instruction.
139The appellant contends, however, that on the evidence, a properly instructed jury could not, acting judicially, reasonably conclude the Crown had established planning and deliberation beyond a reasonable doubt: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28; R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at paras. 30-31.
140There was ample evidence of planning and deliberation. That evidence included:
- The appellant was the beneficiary of $1.5 to $2 million in life insurance she had placed on her husband’s life in the five months prior to his death;
- The killer took several steps to disable Mr. Huang before strangling him to death; and
- Before the body had been discovered, the appellant had begun to move her daughter and herself into a new apartment.
141The appellant argues that the evidence relating to the life insurance policies is in some ways inconsistent with the Crown’s claim that the appellant had decided to murder Mr. Huang to collect on the life insurance policies. Arguments capable of refuting the Crown’s case on planning and deliberation do not render a verdict which rejects those arguments unreasonable. In addition, some of the appellant’s arguments said to contradict planning and deliberation are easily answered by the evidence.
142For example, the appellant submits, that if the appellant murdered her husband to obtain the life insurance proceeds, why did she wait so long to kill him after the policies were in place, and why did she not make a claim on those policies? The fact is the appellant did not wait very long. The second policy was in place for something less than three months before the body was discovered and the appellant was charged with murder. Nor can much be made for the defence by the failure of the appellant to make a claim on the policies, given the circumstances in which the body was found and the appellant’s arrest on a murder charge within five days of the discovery of the body.
143Counsel also submits that if the appellant killed Mr. Huang as alleged by the Crown, she would be unable to obtain a death certificate, a prerequisite to advancing a claim under the life insurance policies. Counsel argues that this fatal obvious flaw in the appellant’s supposed plan to kill her husband renders a finding there was a plan unreasonable.
144There was evidence the appellant had falsely told the landlord that Mr. Huang had gone back to Hong Kong. She told this lie before the landlord discovered Mr. Huang’s body. It is not unreasonable to conclude, that if the appellant had murdered her husband and had she been able to successfully dispose of the body, she may have been able to produce a death certificate in due course.
145The conviction on first-degree murder was not unreasonable.
The Sentence Appeal
146The trial judge made an order under s. 743.21 prohibiting the appellant from communicating with her brother-in-law. Her brother-in-law and his wife have custody of the appellant’s young daughter. Under the terms of an earlier family law order, the brother-in-law is obliged to provide information about the appellant’s daughter to the appellant twice a year.
147As I read the transcript, the appellant was not given any advance notice of the Crown’s intention to seek an order under s. 743.21. When the order was sought, the trial judge had been forced to exclude the appellant from the courtroom because of her conduct. There is no suggestion he erred in doing so. However, the appellant had no opportunity to address the Crown’s request for a s. 743.21 order.
148The order prohibited the appellant from communicating with her brother-in-law. The order made by the trial judge under s. 743.21 did not conflict with the earlier order made in the family law proceedings, requiring the brother-in-law to provide information to the appellant about her daughter twice a year. That obligation remains.
149In my view, the order prohibiting the appellant from communicating with the brother of the person she murdered was not inappropriate. Section 743.21, however, allows the court to make an order permitting communications in “conditions specified in the order”. In my view, it would be appropriate to make the order under s. 743.21 subject to any order made in the family law proceedings permitting communication. It strikes me, that to the extent any qualification of the order under s. 743.21 is to be made, that qualification should be made in the best interests of the daughter. That determination is best made in family law proceedings.
150I would vary the s. 743.21 order in accordance with these reasons. I would ask the parties to agree upon the appropriate wording.
Conclusion
151The appeal from conviction is dismissed. Leave to appeal sentence is granted and the order is varied in accordance with these reasons.
Released: “November 5, 2021 JMF”
“Doherty J.A.”
“I agree Fairburn A.C.J.O.”
“I agree. Sossin J.A.”
1The actual funding agreement is not in the record.
2In their factum, counsel described the appellant’s English language skills as “rudimentary”. The record does not support that characterization, although clearly there were some limits on her ability to speak and understand English.