R. v. Wang, 2019 ONCA 61

Case Summary

The appellant was convicted of break, enter and assault and two counts of breach of probation, and was sentenced to three years' imprisonment less 24 months' credit for pre-sentence custody, plus two years' probation. On appeal, the appellant challenged both conviction and sentence. The court rejected the appellant's argument that the trial judge erred by failing to consider exculpatory evidence in his video statement regarding the intentional nature of contact with the homeowner. The court also rejected numerous other arguments raised for the first time on appeal that were not raised at trial or contained in the trial evidence. Regarding sentence, the court found no error in principle in the imposition of probationary terms, including non-communication provisions and a requirement to seek counselling for gambling addiction. The conviction appeal was dismissed, and the sentence appeal was allowed only to the extent of setting aside the victim fine surcharge.

Court of Appeal for Ontario

Date: 2019-01-29 Docket: C64978

Judges: Simmons, Lauwers and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Dan Wang Appellant

Counsel

Dan Wang, in person Lindsay Daviau, as duty counsel Grace Choi, for the respondent

Heard and released orally: January 14, 2019

On Appeal

On appeal from the conviction entered on January 22, 2018, and the sentence imposed on January 26, 2018, by Justice Jane Kerrigan Brownridge of the Ontario Court of Justice.

Oral Endorsement

[1] The appellant was convicted of break, enter and assault and two counts of breach of probation. He was sentenced to three years' imprisonment less 24 months' credit for pre-sentence custody, plus two years' probation. He appeals against conviction and sentence.

[2] With the assistance of duty counsel, the appellant argues that the trial judge erred in convicting him by failing to take account of exculpatory evidence contained in his video statement. We do not accept this submission. The trial judge found that the appellant intentionally touched the homeowner in the course of his efforts to escape. His assertion in his statement that he runs from situations — as opposed to fighting — does not undermine the trial judge's finding of intentional contact made as part of an attempt to escape. The appellant's statement does not speak to the question of whether such conduct was accidental or intentional.

[3] On his own behalf, the appellant raised numerous other arguments on his conviction appeal founded on matters that were either not raised at trial or not contained in the evidence at trial. We reject these arguments.

[4] Concerning sentence, the appellant argues essentially that there is no useful purpose to be served by the probation order. We reject this submission. There was no objection to probation at trial. Moreover, the probation order contains non-communication terms and a term requiring the appellant to seek counselling, if directed, for his gambling addiction. We see no error in principle in the imposition of these probationary terms.

[5] The Crown concedes that the victim fine surcharge should be set aside.

[6] The conviction appeal is dismissed. The sentence appeal is allowed to the extent of setting aside the victim fine surcharge, but is otherwise dismissed.

Janet Simmons J.A. P. Lauwers J.A. G.T. Trotter J.A.