WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO:
110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. P.C., 2015 ONCA 30
DATE: 20150121
DOCKET: C56813
Doherty, Lauwers JJ.A. and Speyer J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
P.C. (a young person)
Appellant
John R. Mann III, for the appellant
Eric Siebenmorgen, for the respondent
Heard: December 19, 2014
On appeal from the conviction entered on September 27, 2012 and the sentence imposed on March 1, 2013 by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury.
Lauwers J.A.:
[1] The appellant was convicted of manslaughter in relation to the beating death of 20-year-old Jin Tao Zhu. The appellant was 15 years of age at the time of the offence. He did not dispute that he was part of the group of men responsible for the beating, but denied both that he had prior knowledge of a plan to assault the victim and that he was a willing participant. The appellant also denied that he unlawfully confined the victim at the ringleader’s home. The appellant asserted the defence of duress.
[2] For the reasons set out below, I would dismiss the conviction appeal. The appellant abandoned the sentence appeal.
A. FACTS
[3] The ringleader of the assault, Xiao Ming Chen (“Xiao”), was angry with the victim over a romantic rivalry. On February 14, 2010, Xiao told his friend, Peng Ren (“Peng”) that he would find the victim and beat him up. Xiao wanted to “give [the victim] a lesson”. According to the appellant, Xiao called the appellant and demanded he come out to meet him, threatening that if he did not comply, Xiao would “bury” him. The appellant took this statement to be a threat of violence, which he took seriously since he claimed Xiao had beaten him other times in the past. The appellant joined Xiao and Peng at a restaurant.
[4] Xiao telephoned the victim and discovered he was at a bar with the woman Xiao liked. Another friend, Zhao Hui Chen (“Zhao”), picked Xiao, Peng and the appellant up and drove them to the bar where the victim was located. Xiao asked the victim to join him outside, and told the woman who was with the victim to go home by taxi. Xiao, Peng, Zhao, the appellant and the victim then got into the car and drove to a park near the lakeshore. Zhong Rong Zheng ("Zhong") joined the group at the park at some point after the beating had commenced. The appellant claimed that he himself had been driven to the same park and beaten by Xiao a month earlier.
[5] The appellant testified that Xiao took a stick from the trunk of the car and began beating the victim with his fists, the stick and a rock. The appellant claimed he attempted to step in to prevent the beating, but that Xiao grabbed his collar and threatened to beat the group if they did not participate in the assault. They complied, but the appellant claimed he gave only “slight slaps” with the palm of his hand that did not contribute to the victim’s injuries. The victim did not fight back.
[6] When the beating stopped, the victim could not walk properly and was helped to the car. The appellant climbed into the trunk, upon Xiao's request. The appellant testified that, from the trunk, he overheard the victim tell Xiao he wanted to go home. Xiao refused, saying he was worried the victim’s family would call the police. The victim was taken to Xiao’s residence. The appellant claimed that, along with others, he helped the victim upstairs and into a bed in one of the bedrooms. The appellant then went home.
[7] The appellant testified that he was afraid for the victim when he left him at Xiao’s residence, thinking Xiao might beat him again, but also said inconsistently that he did not think the victim was in danger. He did not call the police or seek medical help for the victim, claiming that Xiao had threatened to kill the group if they did not keep quiet.
[8] The victim died during the night at Xiao’s house. The pathologist testified that the cause of death was internal hemorrhaging from blunt force injuries, and that the victim likely would have survived had he received medical attention. When Xiao found the body the next morning, he contacted the police and sought medical attention for the victim. Xiao cooperated with the investigation.
B. Procedural History
[9] The four other participants in the assault – Xiao, Peng, Zhao and Zhong – were adults at the time of the offence. They were charged with first degree murder. Because the appellant was under 18 years of age at the time of the offence, under the Youth Criminal Justice Act, S.C. 2002, c.1, he could not be tried together with the adult accused.
[10] The Crown issued a subpoena to compel the appellant to testify at the preliminary hearing for the adult accused other than Zhong, since Zhong had already pleaded guilty to aggravated assault. Defence counsel brought an application in the Superior Court of Justice to quash the subpoena. Justice Code dismissed the application, with reasons reported at 2011 ONSC 1824, 231 C.R.R. (2d) 215. He held that the appellant had relevant evidence in relation to the adult accused that the Crown could reasonably seek to adduce at the preliminary hearing. Further, the Crown had provided an undertaking to examine the appellant only in relation to the case against the adult accused and not for the purpose of discovering either additional evidence against the appellant or his potential defences. Justice Code also pointed out that the appellant's evidence from the preliminary hearing would be protected from the Crown’s subsequent use and derivative use under ss. 13 and 7 of the Canadian Charter of Rights and Freedoms. Finally, Code J. noted that the Crown already knew the general nature of the appellant’s trial defence, namely the absence of intent and the defence of duress.
[11] The appellant appealed and sought a stay of Code J.’s decision. Justice Rosenberg of this court dismissed the stay application on the basis that the Crown had a legitimate public purpose for calling the appellant as a witness, and that there would be no irreparable harm to the appellant given the protections afforded to him by the Charter, the Youth Criminal Justice Act, s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5, the undertaking given by the Crown and the supervisory powers of the preliminary hearing judge.
[12] The appellant testified at the preliminary hearing of the three adult accused in March 2011. All of the adult accused eventually pleaded guilty, variously, to second degree murder (Xiao), manslaughter (Peng and Zhao) and aggravated assault (Zhong).
C. Crown and Defence Trial Positions
[13] The Crown’s case was that the appellant aided and abetted in the assault on the victim and in his forcible confinement at Xiao’s residence after the assault, and that this materially contributed to the victim’s death. The Crown also argued that, in taking these actions, the appellant had the requisite mens rea to have aided and abetted in the murder. The appellant was therefore guilty of murder as a party to the offence under s. 21(1)(b) of the Criminal Code.
[14] The appellant’s trial position was that he did not intend to assist Xiao in beating the victim or in confining him and that he was under duress throughout the events at issue. The appellant testified that he pretended to beat the victim with “slight slaps”, and that his only purpose in assisting the victim to bed at Xiao’s house was “so [the victim] could rest”. Defence counsel submitted that the evidence established that the appellant “had no intent to assist anyone, in particular [Xiao], in the causing of bodily harm to” the victim. The trial judge put this defence position to the jury.
D. ISSUES
[15] The appellant raises a number of issues that can be conveniently grouped under the following headings: violations of the appellant’s right to silence; flaws in the jury instruction; and the admission of the guilty pleas by the adult accused. The appellant asserts that these errors rendered his trial unfair and the jury’s verdict unreasonable.
E. Analysis
[16] The jury acquitted the appellant of murder and convicted him of manslaughter. Their verdict indicates that while the jury was satisfied that the Crown had proved the appellant was a party to an unlawful act (assault and/or unlawful confinement) that materially contributed to the victim’s death, the jury was not satisfied that the Crown had proved the appellant had the mens rea necessary to make him a party to murder.
(1) Was the Appellant’s Right to Silence Violated?
[17] The appellant did not provide a statement to the police. In the pre-trial application to stay the prosecution, defence counsel argued that the appellant's right to silence was violated when he was compelled to testify at the preliminary hearing for three of the adult accused, and that this automatically rendered the upcoming trial unfair. The trial judge rejected the application, with reasons reported at 2012 ONSC 5657, on the basis that:
In this case, there was no misconduct by the Crown and no breach of its undertaking. The Crown received no information that assisted in the preparation of the case against P.C. and obtained no advantage as a result of his testimony. Further, there has been no unfairness to P.C. as a result of his testimony at the preliminary hearing. There has been no injury and no wrong, and hence no right to any remedy, much less a stay of proceedings. (Para.17)
[18] On appeal, the appellant argued again that his right to silence had been violated. This argument is based on two specific complaints in relation to the cross-examination of the appellant by the Crown. The first is that the Crown breached its undertaking not to use any new information disclosed by the appellant in his testimony at the preliminary hearing against him at his own trial. The second complaint is that, in relation to the duress defence, the Crown improperly suggested that the appellant had recently fabricated evidence about his concern for his family. I will also address the appellant's more general argument that his testimony at the preliminary hearing precluded the Crown from challenging his credibility.
(a) Did the Crown Use the Appellant’s Preliminary Hearing Testimony Improperly?
[19] The appellant testified that after the beating, he accompanied the victim and the adult accused to Xiao’s home. As noted, the appellant rode in the trunk of the car and overheard a conversation between Xiao and the victim. The appellant argues that the Crown improperly questioned the appellant about what he heard from the trunk, based on the following exchange:
Q. Okay. You can hear the conversation in the car?
A. Yes.
Q. Sure you can. You heard [the victim] say, “I want to go home”?
A. Yes.
Q. And you heard [Xiao] say, “No, because your sisters will see your injuries and the police will be called”, correct?
A. And it seemed that he said if [the victim] was sent back home, he was afraid that his family would call police.
[20] The effect of this testimony was to fix the appellant with knowledge that the victim was being held against his will, thereby establishing an element of forcible confinement.
[21] The appellant submits that the questions in this exchange were improper leading questions, either because they drew on the appellant’s preliminary hearing evidence or because they did not flow from his examination-in-chief. Had the appellant answered in the negative, the appellant asserts that the Crown could not have impeached the appellant using his preliminary inquiry testimony due to its undertaking. As a result, there was no good faith basis for the Crown’s questions.
[22] The appellant takes particular issue with the leading question that the appellant could overhear the conversation in the car from his position in the trunk, something he denied in his preliminary hearing testimony. The appellant makes similar arguments regarding evidence about the timeline of the evening including when the appellant became aware of Xiao’s plan to attack the victim, how the victim was set up for the assault, the degree of the appellant’s participation in the assault, and the evidence that Xiao struck the victim with a rock and forced him to roll in the snow.
[23] There is no merit to these arguments. While the appellant was protected against the use of his preliminary hearing testimony under s. 13 of the Charter and s. 5 of the Canada Evidence Act and against the use of evidence derived from his preliminary hearing testimony under s. 7 of the Charter, the impugned cross-examination did not violate any of these prohibitions.
[24] The Crown became aware of the appellant’s knowledge that the victim would be beaten through the appellant’s sister’s witness statement, which she provided before the preliminary inquiry. The photographs of his knuckles were taken by the investigating officers on the night of his arrest, countering the appellant’s assertion that his blows against the victim were minimal. The appellant revealed his ability to overhear the conversation in the car from his position in the trunk during his examination-in-chief. Similarly, the other portions of the cross-examination attacked by the appellant were variously based on the police investigation, the appellant’s examination-in-chief, the evidence given by Peng and Xiao at the appellant’s trial and other information the Crown already possessed. These questions were not based on the appellant’s preliminary hearing evidence.
(b) The Allegation of Recent Fabrication
[25] The appellant’s second complaint is that his right to silence was violated by the Crown’s suggestion in cross-examination that the appellant had somehow testified in the past and had recently fabricated his evidence about his concern for his family as part of the duress defence.
[26] This argument is based on the following exchange:
Q. The first time you've mentioned, sir, concern about your family is when you've testified this morning; isn't that correct?
A. Concerned about my family?
Q. The first time you mentioned any concern about your family being taken to the Lakeshore and beaten by Xiao Ming Chen is this morning when you've testified.
A. I said that I was worried that Xiao Ming Chen would not be doing anything good to my family.
Q. The first time you've mentioned that, sir, is this morning when you testified to try to explain your actions for going out with him that night.
[27] The trial judge immediately excused the jury after this exchange and cautioned the Crown:
You're very close to suggesting that [the appellant] did not tell people this before. [From the perspective of a juror] I don't know if he did or did not. I don't know. I don't know if he gave a statement to police, and he testified before under subpoena.
[28] The Crown explained to the trial judge that this questioning referred only to the fact that the appellant did not mention the possible threat to his family in his earlier examination-in-chief during his trial. The trial judge warned the Crown to be careful, but declined to provide a cautionary instruction to the jury on the basis that the Crown’s questioning approached but did not cross the line of propriety.
[29] Given the brevity of the impugned exchange, I would not interfere with the trial judge’s assessment of how best to address it.
(c) The General Argument
[30] Finally, the appellant made a more general argument that since the Crown had called the appellant as its witness at the preliminary hearing for the adult accused, the Crown was precluded from challenging the appellant’s credibility at his own trial by means of cross-examination. Counsel did not refer the court to any supporting authority for this argument.
[31] I would reject this argument. Apart from the absence of precedent, there is no support in principle for this approach. To the contrary, this argument is quite inconsistent with the operation of the Youth Criminal Justice Act, ss. 7 and 13 of the Charter and s. 5 of the Canada Evidence Act, which afforded the appellant significant protections related to his preliminary hearing testimony, but did not render him immune from prosecution or from appropriately limited cross-examination when he chose to testify at his trial: see R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451.
(2) Flaws in the Jury Instructions
[32] The trial defence, as explained in the appellant’s factum, had two stages:
The first stage: Prior to considering the defence of duress in any way, P.C. had no intent to assist or aid murder or manslaughter pursuant to s. 21(1)(b) party liability. The second stage: Nevertheless, if the Jury found P.C. guilty as a party before considering any duress facts, was his guilt then excused by the defence of duress.
[33] The appellant asserts that the trial judge made errors in her jury instruction at both stages. Since duress was raised as a defence, the trial judge had to explain the required mental element for aiding and abetting and the defence of duress, which operates only after the Crown proves the requisite mental element for aiding and abetting. Because the jury convicted the appellant of the included offence of manslaughter rather than second degree murder, this court’s concern is with the aiding and abetting instruction specifically as it relates to manslaughter. The jury instructions specific to murder are not germane in light of the verdict.
(a) The Aiding and Abetting Mens Rea Instruction
[34] The trial judge’s jury instruction on the mental element for aiding and abetting manslaughter used language that faithfully tracked s. 21(1)(b) of the Criminal Code and the Supreme Court of Canada’s decision in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973. I see no error in that instruction.
(b) The Duress Instruction
[35] The appellant argues that the trial judge erred in her jury instruction on duress. The Crown concedes that there was an air of reality to the duress defence on the evidence and that it was appropriate for the judge to instruct the jury on the defence. (The Crown also accepts, for the purpose of this appeal, that the common law duress defence is available to a charge of being a party to murder, although this specific issue is on reserve in another case before the court.)
[36] The jury charge in this case predates the decision of the Supreme Court of Canada in R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14. Unsurprisingly, the charge is not organized precisely in accordance with the scheme of the duress defence as set down in that decision.
[37] Counsel for the appellant, however, points to only one specific error in the duress instruction that follows from Ryan. He argues that Ryan established that the threat of future harm is a viable basis for the duress defence, and that the trial judge erred by failing to explain this in her charge to the jury. But this assertion is not correct. The trial judge specifically referred to the risk of future harm when she said: “The threat must be of a specific kind. It must threaten that P.C. will be killed or suffer serious bodily harm.” [Emphasis added.]
[38] In her review of the evidence, the trial judge referred to all of the evidence related to the threats and left the duress defence to the jury. In my view, this instruction sufficiently conveyed that threats of future harm fall within the scope of a duress defence. As a result, I find no error in the trial judge’s duress instruction.
(3) Evidence of the Guilty Pleas of the Other Accused
[39] As noted, the adult accused eventually pleaded guilty, variously, to second degree murder (Xiao), manslaughter (Peng and Zhao) and aggravated assault (Zhong). Xiao and Peng testified at the appellant’s trial, while Zhao and Zhong did not. One issue at trial was how the guilty pleas and convictions of the adult accused should be addressed.
[40] I agree with the Crown’s submission that the trial judge correctly permitted the Crown to adduce evidence of Xiao and Peng’s guilty pleas, particularly given defence counsel’s refusal to undertake to refrain from cross-examining on their pleas and convictions. The pleas and convictions were relevant to Xiao and Peng’s credibility as witnesses, and the Crown understandably wanted to elicit this information instead of having it disclosed as a possible surprise during their cross-examination by defence counsel. Zhao and Zhong’s pleas were not introduced at the appellant’s trial since they were not witnesses.
[41] The trial judge provided the following explanation of the process of entering pleas and convictions in her jury charge:
At the time a guilty plea is taken, there is an inquiry before a judge as to the facts upon which that plea is based, and the judge must be satisfied that those facts support a conviction in respect of the charge to which the plea is entered.
[42] This explanation was unnecessary and potentially prejudicial. The potential for prejudice lay in the fact that the jury might interpret this instruction as providing a judicial endorsement “that Xiao and Peng’s pleas should be given more weight. As the Crown acknowledged on appeal, the details of this excerpted explanation had no relevance to any of this jury’s tasks. There was no reason for the trial judge to address this matter with the jury and she should not have done so.
[43] The trial judge went on to make it clear that Peng’s guilty plea to manslaughter had no relevance to the appellant’s guilt. However, she said something quite different about Xiao’s guilty plea and conviction for second degree murder. The trial judge explained that the determination that Xiao had committed murder was the logical first step in deciding whether the appellant had aided and abetted Xiao in committing an unlawful act. She told the jury they could use that plea and conviction to conclude that Xiao had committed murder.
[44] The trial judge erred in law when she told the jury that it could use Xiao’s guilty plea and conviction as evidence against the appellant. See R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3; R. v. MacGregor (1981), 1981 CanLII 3351 (ON CA), 64 C.C.C. (2d) 353 (Ont. C.A.); R. v. Pentiluk (1974), 1974 CanLII 1560 (ON CA), 21 C.C.C. (2d) 87 (C.A.), at 92.
[45] Xiao’s guilty plea was no more than hearsay evidence that Xiao had committed murder, and could not be considered in determining the appellant’s guilt. In R. v. MacGregor, Martin J.A. said, at pp. 357-58:
Admittedly, it was error for the trial Judge to fail to instruct the jury that in considering the case against the appellant they should disregard the pleas of guilty of manslaughter by the co-accused and that those pleas were not in any way to be taken into account in considering the case against the appellant.
[46] This statement of the law was adopted by the Supreme Court in R. v. Simpson. However, the court also adopted Martin J.A.’s position in MacGregor, at p. 358, that this type of error is not necessarily fatal unless it causes prejudice to the accused.
[47] This misdirection could have been significant had the jury convicted the appellant of murder. However, because the jury convicted the appellant of the included offence of manslaughter, I am satisfied that the error caused no substantial wrong or miscarriage of justice.
[48] To convict of manslaughter, the jury had to be satisfied that the appellant aided or abetted in an unlawful assault and/or unlawful confinement that caused death. To reach these conclusions the jury did not have to be satisfied that Xiao was guilty of murder, but only that he had unlawfully caused the victim’s death. It was central to both the defence and the appellant’s cases at trial that Xiao had assaulted and confined the victim and that this caused the victim’s death. The jury had no need to resort to Xiao’s guilty plea to make that finding. I observe that Xiao also testified and the jury had ample opportunity to take his measure quite apart from his guilty plea. Given the manslaughter verdict, it can be safely said that the evidence of Xiao’s murder plea and conviction did not play a role in the jury’s verdict.
[49] Since the jury therefore started from the fact that Xiao had unlawfully caused the victim’s death, the trial judge’s reference to Xiao’s murder plea caused the appellant no prejudice. Xiao’s liability for murder, as opposed to his accepted liability for the unlawful acts that caused death, is irrelevant given the manslaughter verdict. Since the jury convicted the appellant of manslaughter, it is unnecessary to consider the adequacy of any instructions as to how the jury might have moved beyond that accepted premise to the further finding that Xiao was guilty of murder.
[50] Examined contextually, the trial judge’s erroneous instruction concerning the guilty pleas did not cause any substantial wrong or miscarriage of justice.
F. CONCLUSION
[51] The appellant’s arguments that violations of the appellant’s right to silence, errors in the jury charge, and the admission of evidence of guilty pleas by the adult accused rendered his trial unfair and led to an unreasonable verdict are unfounded.
G. Disposition
[52] I would dismiss the appeal.
Released: January 21, 2015 “D.D.”
“P. Lauwers J.A.”
“I agree Doherty J.A.”
“I agree C.M. Speyer J. (ad hoc)”