COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zhang, 2016 ONCA 473

DATE: 20160615

DOCKET: C60773 & C60774

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yong-Sheng Zhang and

Alltheway Trucking Inc.

Appellants

Vincenzo Rondinelli, for the appellant Zhang

Joseph Di Luca, for the appellant Alltheway Trucking Inc.

Demetrius Kappos and Paul Gonsalves, for the respondent

Heard: May 31, 2016

On appeal from the decision of Justice Gregory J. Verbeem of the Superior Court of Justice, dated June 25, 2015, allowing in part the appeals from the convictions entered on September 15, 2013 and the sentences entered on January 16, 2014 by Justice of the Peace Maureen Ryan-Brode of the Ontario Court of Justice, with reasons reported at 2015 ONSC 4128.

ENDORSEMENT

[1] This is an application for leave and, if leave is granted, an appeal from the decision of Verbeem J. sitting as a summary conviction appeal court, with reasons reported at 2015 ONSC 4128, allowing in part the appeals from the convictions and sentences entered on September 15, 2013 and January 16, 2014, respectively, by Justice of the Peace Maureen Ryan-Brode of the Ontario Court of Justice.

FACTS

[2] On two separate occasions, a tractor trailer driven by the appellant Zhang entered Canada with shipments containing live "invasive fish". Zhang and the trucking company, Alltheway Trucking Inc. ("Alltheway"), were each charged with two counts of possessing invasive fish without a licence contrary to s. 6(1) of the Ontario Fishery Regulations, 2007, SOR/2007-237 (the "Regulation"), a strict liability offence under s. 78 of the Fisheries Act, R.S.C. 1985, c. F-14 (the "Act"). The potential harm that could result from the importation of these invasive species – as the record demonstrates – is enormous.

[3] The Justice of the Peace convicted both appellants. She found the identity of the corporate defendant was proven beyond a reasonable doubt and that the evidence showed, on a balance, that Zhang did not meet the statutory due diligence defence under s. 78.6 of the Act. She imposed fines of $2000 and $3000 in respect of Zhang and $30,000 and $40,000 in respect of Alltheway.

[4] The summary conviction appeal judge (the "appeal judge") allowed Alltheway's appeal from conviction and ordered a new trial. He found that the Justice of the Peace erred in relying on the presence of counsel for Alltheway as evidence of identity. The appeal judge also allowed Zhang's appeal from sentence and varied the fine for the second offence to $2000 because the sentence below violated the Coke principle. He would have allowed Alltheway's sentence appeal on the same basis.

[5] Both appellants seek leave of this court to appeal the decision of the appeal judge.

ALLTHEWAY APPEAL

[6] Alltheway submits that the appeal judge erred in failing to find that the decision of the Justice of the Peace constituted an unreasonable verdict. It argues that, rather than order a new trial, he ought to have set aside the conviction entered by the Justice of the Peace and ordered that an acquittal be entered in its place.

[7] In a nutshell, Alltheway's argument is that the appeal judge ought to have found that the evidence before the Justice of the Peace was insufficient to prove its identity beyond a reasonable doubt. Alltheway argues that the appeal judge committed an error of law in failing to consider and analyze the evidence through the "lens of judicial experience" as set out in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Had he done so, he would have been required to find that the evidence in effect came up short. Instead, the appeal judge found that the Justice of the Peace had erred in law in considering the presence of counsel as a factor in the identification and ordered a new trial.

[8] We do not accept this submission. In our view, read as a whole, the reasons of the appeal judge make it clear that he did not consider the verdict of the Justice of the Peace to be an unreasonable one.

[9] He considered the evidence in relation to identity from paras. 65 through 78 of his reasons. He concluded, at para. 78, that he was "satisfied that there was evidence before the Justice of the Peace capable of supporting his finding that the Crown established the identity of the corporate Appellant." Although the appeal judge did not explicitly state that he rejected Alltheway's argument that the verdict of the Justice of the Peace was unreasonable, it is implicit that he did so. We are not persuaded that he erred.

[10] And while the issue of whether a verdict is unreasonable is a question of law, the real question posed by this appeal relates to the factual findings made by the trial justice and the sufficiency of the evidence in relation to identity.

[11] The law in relation to whether a verdict is unreasonable is well-settled. In the context here, there is no issue raised of general importance beyond the particular facts of this case.

[12] In the circumstances, we would deny leave to appeal.

ZHANG APPEAL

[13] The appellant Zhang also seeks leave to appeal and submits that the appeal judge and the Justice of the Peace erred in assessing the evidence of due diligence under s. 78.6 of the Act.

[14] We do not accept this submission. The reasons of the appeal judge and the Justice of the Peace demonstrate that they understood the test and applied it contextually.

[15] The essence of the issue this appellant raises relates to the factual findings made by the Justice of the Peace after assessing the evidence before her in relation to the due diligence defence.

[16] In our view, the issue raised in this context is one of mixed fact and law and, in any event, there is nothing raised here that is of concern beyond these parties.

[17] We would deny leave to appeal.

"J. MacFarland J.A."

"K. van Rensburg J.A."

"Grant Huscroft J.A."