COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2014 ONCA 146

DATE: 20140225

DOCKET: C55841

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jenny Tran

Appellant

Vincenzo Rondinelli, for the appellant

Sean Doyle, for the respondent

Heard: February 24, 2014

On appeal from the decision of the Summary Convictions Appeal Court dated July 4, 2012 by Justice Mark L. Edwards of the Superior Court of Justice, dismissing the appeal from the conviction entered on June 10, 2011 by Justice Donald J. Halikowski of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant Jenny Tran seeks leave to appeal the decision of Summary Conviction Appeal Judge M.L. Edwards of the Superior Court of Justice dated July 4, 2012, dismissing an appeal from the decision of D.J. Halikowski J. of the Ontario Court of Justice dated June 10, 2011 convicting the appellant of the criminal offences of unlawful confinement and assault.

[2] The convictions arose out of an altercation at a health spa between the appellant, the spa’s owner, and the complainant, a client. The complainant decided to leave the spa when, during her treatment, she heard a loud argument between the appellant and another customer. The appellant would not let the complainant leave without paying, although the treatment had just started. The appellant locked the spa door and pushed the complainant backwards when she tried to leave.

[3] The defence at trial, based on the appellant’s testimony, was that the appellant was justified in forcibly preventing the complainant from leaving the spa until the police, whom she called by way of a 911 call, arrived to deal with the situation. In essence, the appellant’s defence was that she was effecting a citizen’s arrest pursuant to s. 494 of the Criminal Code.

[4] The trial judge rejected this defence. He noted that “[t]he accused herself admits that she did not view the behaviour of Ms. Howard even as a crime” and concluded that “this court cannot find that Ms. Howard was in any sense engaged in the commission of an indictable offence when she refused to pay for the service.”

[5] The summary conviction appeal judge set out the trial judge’s finding in the first quoted passage in the preceding paragraph and said:

That aspect of the learned trial judge’s reasons, in my view, puts an end to this appeal. The accused did not have in her mind, subjectively, any belief in the fact that Ms. Howard, who was the complainant, had committed a crime, and as such there was no reasonable basis, in my view, for any defence based on a citizen’s arrest.

[6] The appellant seeks to appeal on the basis that this conclusion of the trial judge, affirmed by the summary conviction appeal judge, was based on a single answer given by the appellant in her testimony that was in turn based on a misinterpretation of the word ‘dispute’ by a Cantonese interpreter. On this appeal, but not on the prior appeal, the appellant seeks to introduce fresh evidence, namely, an affidavit of another Cantonese interpreter, to establish this proposition.

[7] We do not think that the proposed appeal comes within s. 839(1) of the Criminal Code as interpreted in the leading cases, especially R. v. R.R. (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463 (Ont. C.A.), at para. 32.

[8] The appellant submits that her appeal raises a question of law of significance to the administration of justice beyond the singular circumstances of this case, namely, whether an accused can resort to the citizen’s arrest power under s. 494 of the Code in circumstances where a complainant refuses to pay for services rendered by the accused.

[9] For several reasons, we do not think that the proposed appeal is a good vehicle for considering this issue. First, there is very little evidence in the record about the contractual relations between the parties. Second, the trial judge did not find that s. 494 of the Code was inapplicable in respect of the non-payment for a service. Instead, he explicitly held that s. 494 was applicable and then considered whether it afforded a defence. Third, the issue raised by the proposed fresh evidence could have been advanced on the first appeal; it was not and there is no explanation for this failure. Fourth, the proposed fresh evidence appears to relate to a question of fact, not of law, namely, what meaning did the interpreter convey to the accused about the word ‘dispute’ in a question asked on cross-examination.

[10] For these reasons, we do not think that the proposed appeal comes within s. 839(1) of the Criminal Code. Accordingly, the application for leave to appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”