R. v. Li, 2008 ONCA 138

CITATION: R. v. Li, 2008 ONCA 138

DATE: 20080228

DOCKET: C41995

COURT OF APPEAL FOR ONTARIO

MOLDAVER, MacPHERSON and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

RAYMOND WAI MING LI

Appellant

John R. Mann III, for the appellant

John North and Cindy Afonso, for the respondent

Heard and released orally: February 22, 2008

On appeal from the conviction entered by Justice F. Caputo of the Superior Court of Justice dated December 19, 2003.

ENDORSEMENT

[1] In our view, this appeal must be dismissed for the following reasons.

[2] The appellant argues that a new trial is required in light of the fresh evidence sought to be tendered by him concerning the investigation in 2002 of a guard at the Don Jail for suspected trafficking in drugs at the jail, including at the time of the incident involving the appellant. We disagree.

[3] There is no dispute that there were only two issues at trial: did the appellant provide the involved inmate with the drugs or did the inmate have the drugs in his possession when he met with the appellant. In respect of these issues, the trial judge made four central findings.

[4] First, he found that Officer MacDonald conducted a frisk search of the inmate shortly before he met with the appellant in the interview room at the Don Jail. No drugs were discovered.

[5] Second, Officer Quade observed through a window in the interview room what he believed to be the inmate’s and the appellant’s hands touching under the table in the interview room.

[6] Third, the inmate was strip searched shortly after his interview with the appellant, leading to the discovery of the contraband drugs.

[7] Finally, while waiting at the Don Jail, the appellant hid an incriminating envelope, which was of the size necessary to contain the drugs, in the chair in which he was sitting where it was later found. Despite an innocent explanation offered by the appellant for this conduct, the trial judge rejected the explanation and held that the evidence of the appellant’s attempt to hide the envelope was evidence of post-offence conduct that could be considered evidence indicative of the appellant’s guilt.

[8] The fresh evidence sought to be tendered by the appellant in no way undermines these critical factual findings by the trial judge; nor, for the reasons that follow, does it impact on trial fairness. Accordingly, it will not be admitted.

[9] The appellant also raises numerous additional grounds of appeal. In our opinion, they are without merit.

[10] The grounds advanced regarding trial fairness ignore the fact that the appellant, an experienced criminal defence lawyer, elected to represent himself at trial. Having so elected, he then failed to seek additional disclosure from the Crown as new information came to light, failed to seek any adjournment of the trial to compel additional Crown disclosure or investigation, and failed to raise with the trial judge many of the matters now complained of, although he was in a position to do so.

[11] We also do not accept that the trial judge erred in law in any of the ways alleged on appeal. Our review of the record and the trial judge’s reasons does not support the assertions that the trial judge misapprehended or failed to consider relevant evidence or that he erred in his application of the relevant legal principles to the facts of this case.

[12] In particular, there is no basis for the appellant’s contention that the trial judge’s conduct in this case gave rise to a reasonable apprehension of bias.

[13] Furthermore, the trial judge’s treatment of the disclosure of the letter he received regarding the appellant was exemplary. We see no basis for interfering with the trial judge’s conclusion that the contents of the letter did not warrant a mistrial.

[14] In the end, the appellant has not established that the trial judge’s key factual findings, set out above, are tainted by any palpable or overriding error. Accordingly, there is no basis for appellate interference with those findings. In the absence of other legal error, which did not occur in this case, those findings are dispositive of this appeal.

[15] Accordingly, for the reasons given, the appeal is dismissed.

“M.J. Moldaver J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”