Court of Appeal for Ontario

CITATION: R. v. Du, 2015 ONCA 715

DATE: 20151026

DOCKET: C59981

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jiayu Du

Appellant

Fredrick R. Schumann, for the appellant

Cindy Afonso, for the respondent

Heard and released orally: October 20, 2015

On appeal from the decision of the Summary Convictions Appeal Court dated December 12, 2014 by Justice Thomas A. Bielby of the Superior Court of Justice, allowing the appeal from the sentence imposed on February 4, 2014 by Justice Theo Wolder of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of two offences under the Customs Act R.S.C. c. 1 (2nd Supp.).

[2] The summary conviction appeal judge found that the sentencing judge erred in law when, as part of his reasons for sentence, he stated:

The respondent did not deliberately fail to pay the duty owed.

[3] In our view, the sentencing judge made no legal error. He was responding to the submissions of crown counsel and the response of defence counsel to the issue of whether the accused had planned and deliberated her conduct and whether to treat that as an aggravating factor on sentence.

[4] The summary conviction appeal judge misapprehended this finding by the sentencing judge by treating it as misunderstanding by him of the mens rea requirement of the offences.

[5] As the summary conviction appeal judge made a clear error of law, which reflected a failure to give deference to trial judges’ knowledge of the law, we grant leave to appeal, set aside the decision of the summary conviction appeal judge and restore the sentence imposed by the trial judge.

[6] The appellant also asks this court to stay one of the convictions on the Kienapple principle. This was not done at trial. The Crown opposes this submission. In those circumstances and as the sentence imposed is a conditional discharge, we decline to give effect to that submission.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”