COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Li, 2016 ONCA 573

DATE: 20160718

DOCKET: C59326

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiaomin Li

Appellant

Timothy E. Breen, for the appellant

Carolyn Otter, for the respondent

Heard: June 1, 2016

On appeal from the convictions entered by Justice G. DiTomaso of the Superior Court of Justice, sitting with a jury, on February 14, 2014.

By the Court:

Overview

[1] The appellant was convicted of unlawfully producing marihuana and possession of marihuana for the purpose of trafficking. She received an 18 month conditional sentence.

[2] At trial, her defence was that her conduct was excused by duress, as she had participated in the crimes at the behest of Wing Kwan with whom she had been involved in a romantic relationship for more than a year. She testified that she had been physically, emotionally and sexually abused and that Kwan had threatened to kill her and her 18 year- old daughter.

[3] The appellant’s ground of appeal is a narrow one: the trial judge erred in failing to relate the expert evidence regarding battered spouse syndrome to the objective elements of duress.

[4] At the conclusion of the hearing, the court allowed the appeal, with reasons to follow. These are those reasons.

Facts

[5] In July 2008, police began investigating an outdoor marihuana grow operation in Severn Township. The police subsequently arrested the appellant, Wing Kwan, and two others.

[6] The appellant and Kwan had been in a romantic relationship since the spring of 2008. She said that when she learned that he was working to set up a marihuana grow operation, she tried to end her relationship with him. However, Kwan became physically abusive towards her and told her that if she left him, he would make sure that she never saw her daughter again.

[7] The appellant then tried to end her relationship with Kwan by avoiding him and ignoring his telephone calls. However, Kwan would come to her apartment in the middle of the night, physically assault her, threaten her with a knife or gun and threaten to harm her daughter. The appellant testified that she was too scared to call the police.

[8] The appellant testified that around 3:00 a.m. on June 23, 2009, Kwan woke her up and told her she had to come to the grow operation to act as an interpreter. She resisted, and Kwan grabbed her by the throat and started breaking things. The appellant then agreed to go. She later told Kwan that she wanted to go home, and he threatened to kill her. The appellant worked in the fields as directed by Kwan, and was arrested the following day.

[9] In addition to the appellant’s testimony, her daughter, Sarah, also testified. Sarah testified that she frequently heard Kwan yelling at her mother, and that she once saw Kwan with his hands around her mother’s neck. When she threatened to call the police on Kwan, he threatened to kill her and her mother.

[10] The defence also called Deborah Sinclair, who was qualified to give opinion evidence on the dynamics of domestic violence in intimate relationships. Sinclair’s evidence supported the appellant’s claim that she was a victim of abuse. Additionally, Sinclair addressed the behavioural characteristics of someone subject to such abuse, including a failure to seek assistance from police or third parties and inconsistent disclosure about the abuse.

Analysis

[11] A trial judge’s charge is not to be measured against a standard of perfection: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, and a jury charge must be examined as a whole.

[12] In R. v. Malott, 1998 CanLII 845 (SCC), [1998] 1 S.C.R. 123, a case dealing with self-defence, Major J. stated, at paras. 20 and 21, that the principles of battered woman syndrome must be communicated to the jury and the jury should be informed of how the expert evidence may be of use.

[13] The Crown conceded that even though this case involved a claim of duress rather than self-defence, the principles had to be communicated to the jury so as to assess whether the defence of duress had been made out. That said, the Crown argues that the trial judge did so.

[14] The trial judge’s jury charge consisted of lengthy summaries of the evidence of each witness. This included a summary of the evidence of Sinclair, the defence expert.

[15] That said, while the elements of duress were described and Sinclair’s testimony was summarized, no effort was made to relate her evidence to the legal issues and principles in a manner that would equip the jury to reach its verdict. Read as a whole, the charge did not provide the jury with the tools it needed to assess the appellant’s defence. As a result, the convictions cannot stand.

Disposition

[16] At the close of the Crown’s submissions on appeal, the Crown agreed with the appellant that if the court allowed the appeal, an appropriate result would be an acquittal. The appellant had served her sentence, was facing imminent immigration issues, and the judge had accepted the appellant’s and Sinclair’s evidence in his sentencing reasons.

[17] In the circumstances, at the close of oral argument, we allowed the appeal, set aside the convictions and entered acquittals on both charges.

Released:

“GS” “George R. Strathy C.J.O.”

“JUL 18 2016” “S.E. Pepall J.A.”

“C.W. Hourigan J.A.”