COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang, 2013 ONCA 45

DATE: 20130125

DOCKET: C50864

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiang Tang

Appellant

Russell Silverstein, for the appellant

Amy Alyea, for the respondent

Heard and released orally: January 17, 2013

On appeal from the decision of Justice Jane E. Kelly of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated July 10, 2009, dismissing the appeal from the conviction entered by Justice C.H. Paris of the Ontario Court of Justice, on November 29, 2006.

ENDORSEMENT

[1] The appellant was charged with two counts of assault, assault with a weapon and possession of a weapon for the purpose of committing an offence, arising out of a domestic dispute with his wife. At trial, he was acquitted of the two assault charges and convicted of the assault with a weapon charge. The weapon possession charge was stayed on the basis of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The appellant received a suspended sentence, plus one year probation. His appeal from conviction and sentence to the summary conviction appeal court was dismissed. He now seeks leave to appeal to this court and, if leave be granted, appeals from conviction on the sole ground that the trial verdict was unreasonable.

[2] It is well settled that leave to appeal to this court on a question of law alone under s. 839(1)(b) of the Criminal Code is granted sparingly and only in exceptional cases. In R. v. R.R., 2008 ONCA 497, Doherty J.A. of this court described the limited circumstances in which leave to appeal should be granted as falling generally within two categories of cases: (1) where the proposed question of law has significance to the administration of criminal justice generally; or (2) where there appears to be a clear error, even if it cannot be said that the error has significance to the administration of justice beyond the specific case.

[3] The appellant argues that this case comes within the second category of cases. We disagree.

[4] We are not satisfied that the appellant has met the requisite threshold for leave. Contrary to the appellant’s submission, there was direct evidence in this case on which a properly instructed jury, acting judicially, could have convicted the appellant of the assault with a weapon charge. The appellant’s 14-year old son witnessed the altercation between the appellant and his wife. His evidence of the events that transpired, including the appellant’s holding of a knife in his wife’s direction while their argument continued and the appellant demanded money, was sufficient to ground the conviction. The trial judge did not err in his appreciation or treatment of the evidence. On the contrary, he properly took account of the full circumstances surrounding the incident, including the fact that the appellant had pushed his wife moments before fetching the knife, and, based on that evaluation, concluded that the assault with a weapon charge had been made out.

[5] It follows that the summary conviction appeal court judge properly found that the trial verdict was not unreasonable. In these circumstances, we see no merit to the appellant’s proposed appeal. The appellant merely seeks to relitigate the same issue that was fully and properly addressed by the summary conviction appeal court judge.

[6] The requirements for leave to appeal not having been met, leave to appeal is denied.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Sarah Pepall J.A.”