Court of Appeal for Ontario

Citation: R. v. Shi, 2011 ONCA 515

Date: 2011-07-12

Docket: C52681

Between:

Her Majesty The Queen Respondent

and

Su Feng Shi Appellant

Before: Moldaver, MacPherson and Epstein JJ.A.

Counsel: Ravin Pillay, for the appellant Joan Barrett, for the respondent

Heard and released orally: July 5, 2011

On appeal from conviction and sentence by Justice Bruno Cavion of the Ontario Court of Justice, dated August 20, 2010.

ENDORSEMENT

[1] The appellant appeals his convictions for assault and unlawful confinement. He also appeals his 18-month concurrent sentences and a $400 restitution order.

[2] With respect to the conviction appeal, the Crown concedes, and we agree, that the conviction for assault cannot stand. The appellant was charged with the offence of conspiracy to commit the indictable offence of assault. The trial judge acquitted him of that offence but found him guilty of the “lesser and included” offence of assault. With respect, he erred in doing so. With her usual candour, Ms. Barrett for the Crown acknowledges that in this case, the substantive offence of assault does not come within any of the three categories identified by Binnie J. in R. v. G.R. (2005), 2005 SCC 45, 198 C.C.C. (3d) 161 (S.C.C.), that would entitle it to be considered as an included offence in the conspiracy count. Ms. Barrett further concedes, again correctly, that this is not a case in which the information can be amended to substitute the offence of assault.

[3] Accordingly the appeal from the assault conviction is allowed and that conviction is quashed.

[4] As for the charge of unlawful confinement, contrary to the appellant’s submission, we are satisfied that the trial judge was aware of the constituent elements of that offence and that his findings of fact support a conviction on it.

[5] On this record, the outcome of that count turned essentially on whether the appellant, in the presence of his co-accused Liu, coerced the complainant into going to Liu’s home, or whether the complainant attended Liu’s home of his own free will. The complainant testified that he attended Liu’s home because the appellant threatened him that there would be bad consequences if he did not, remarking ominously that the complainant had “a wife and kids”. In those circumstances, the complainant maintained that he “had no choice” but to attend.

[6] The trial judge accepted the complainant’s evidence on this issue. In short, he was satisfied that the complainant was coerced by threats into attending Liu’s home and that in complying as he did, the complainant was prevented from moving about freely for some consequential period of time. While the trial judge may not have commented specifically on the extent and duration of the restraint under which the complainant was operating, in our view, he was not required to do so. Once he accepted the complainant’s evidence as to the reason he accompanied the appellant and Liu to Liu’s home, the physical restraint and duration components of the offence were unquestionably made out. This ground of appeal accordingly fails.

[7] The appellant also challenges the trial judge’s credibility findings. He does so on the basis that the trial judge “failed to scrutinize the defence evidence and the complainant’s evidence in a balanced fashion”. According to the appellant, the trial judge glossed over and failed to resolve a number of serious problems in the complainant’s evidence and yet dismissed the defence evidence out of hand without much or any analysis. He also submits that the trial judge misapprehended material aspects of the defence evidence. We would not give effect to this ground.

[8] The trial judge gave brief but cogent reasons for believing the complainant’s evidence and rejecting the evidence of the defence witnesses. As his reasons indicate, he was alive to the frailties in the complainant’s evidence. These included both internal and external inconsistencies. In the end, however, he was satisfied that the complainant was “telling the truth”. In this regard, after noting that various aspects of the complainant’s evidence had “ a ring of truth” to them, the trial judge continued at pp. 12 and 13 as follows:

I could see in Mr. Lin’s face the sheer agony and discomfort of being here. His eyes were red and swollen.

He was constantly shifting and more than once saying humbly to me “I will do whatever you, the judge, wish.” He was not lying to me. Yes, some details were not clear. Yes, contradictions were occurring. It was a fierce night and details got confused unavoidably, but I find that the overall tenor of his story, the main structure is true and honest.

[9] In so concluding, the trial judge considered the evidence of Mr. Chen (a Crown witness) and to the extent it differed from the evidence of the complainant, he found Mr. Chen to be a “reluctant” witness. In our view, the trial judge was uniquely positioned to make that assessment.

[10] As for the defence witnesses, the trial judge found their evidence to be contrived and improbable. We do not propose to detail the many problems and frailties in their evidence. Suffice it to say that the trial judge was on solid ground in concluding that “they were selective in what they remembered and sometimes simply unbelievable”. To the extent, if any, that the trial judge may have misapprehended the defence evidence, the misapprehensions were in our view not material and would not have affected the reasoning process that led to the verdict.

[11] In sum, we are not persuaded that the trial judge went astray in his credibility findings. He had a good grasp of the evidence and the witnesses and his reasons disclose no error in his assessment of the Crown witnesses as compared to the defence witnesses. In short, having considered the defence evidence, he disbelieved it and found that it did not raise a reasonable doubt.

[12] Accordingly, the appeal from conviction for unlawful confinement is dismissed.

[13] Turning to sentence, in imposing sentences of 18 months concurrent for assault and unlawful confinement, the trial judge exceeded the submission of the Crown by six months. The Crown had asked for 12 months’ imprisonment taking into account the time the appellant had spent in pre-trial custody (4 months). The effective sentence imposed by the trial judge therefore amounted to 22 months.

[14] In his factum, the appellant submitted that the appellant’s sentence was disparate to the sentence imposed on his co-accused Liu. We have no difficulty distinguishing the sentence imposed on the appellant from the sentence of 9 months imposed upon his co-accused Liu. Unlike the appellant, Liu was a first offender and he was found by the trial judge to have been a follower. The appellant, on the other hand, had a record for assault causing bodily harm, robbery, disguise with intent, possession of illicit drugs and failing to attend court. Moreover, he was the ringleader in respect to the unlawful confinement count on which he was convicted. The trial judge described him variously as “a bully who preys on weaker people” and someone who is “evil and mean”.

[15] In the circumstances, we do not think that the 18-month concurrent sentences imposed by the trial judge were out of line. While we acknowledge that the conviction for assault has been quashed, on the trial judge’s finding, the assault committed by the appellant was a minor one and we are satisfied, in all of the circumstances, the sentence of 18 months for unlawful confinement was fit. We would however set aside the restitution order. The Crown did not ask for it and the trial judge made no inquiry into the appellant’s ability to pay.

[16] Accordingly, leave to appeal sentence is granted and the restitution order is set aside. In all other respects, the sentence imposed by the trial judge shall remain the same.

Signed: “M. J. Moldaver J.A.”

“J. C. MacPherson J.A.”

“ G. J. Epstein J.A.”