Court of Appeal for Ontario
Date: 2017-02-13 Docket: C60564
Judges: Hoy A.C.J.O., Doherty and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Rong Lin Appellant
Counsel
Tung-Chieh Wu, for the appellant
Andrew Cappell, for the respondent
Heard and Released
Heard and released orally: February 9, 2017
On appeal from: The decision of the Summary Convictions Appeal Court, dated May 15, 2015 by Justice Gary T. Trotter of the Superior Court of Justice, dismissing the appeal from the conviction entered on November 22, 2013 by Justice Heather A. McArthur of the Ontario Court of Justice.
Endorsement
[1] The applicant, Rong Lin, seeks leave to appeal from the order of the Summary Conviction Appeal Court Judge (the "SCACJ") dismissing his appeal for conviction for assault.
[2] The applicant was represented at trial by a law student associated with Downtown Legal Services ("DLS"), a legal aid clinic associated with the Faculty of Law, University of Toronto. The applicant's file was supervised by a DLS lawyer. At trial, the applicant did not raise the issue of whether the strip search conducted on him after his arrest violated his Charter rights. Before the SCACJ, he argued that this was because he received ineffective legal representation.
[3] In para. 15 of his reasons, the SCACJ wrote the following:
I accept that Mr. Lin was strip searched at the police station. This is clear from the disclosure materials. A strip search would have been reasonable in the circumstances given that Mr. Lin was being held for a bail hearing and would have been required to interact with other detainees. I am dubious of Mr. Lin's account concerning the manner of his strip search, particularly since he failed to mention this to the DLS lawyer and student, and because he made no mention of it at trial. Moreover, the response of DLS was a reasonable exercise of professional judgment in all the circumstances.
[4] Leave to appeal following a summary conviction appeal is limited to questions of law alone. The applicant must also show that the case either raises a question of law that has significance to the administration of justice beyond the four corners of the case, or that there appears to be clear error that is relevant only to the specific case: see R. v. R.R., 2008 ONCA 497, 234 C.C.C. (3d) 463.
[5] The applicant seeks to argue that the SCACJ erred in:
concluding that the strip search would have been reasonable in the circumstances in the course of assessing the quality of the representation that the applicant received;
refusing to admit the fresh evidence regarding the manner that the strip search performed on the applicant was conducted that the applicant had sought to adduce on appeal;
concluding that the elements of the offense of assault were proven; and
concluding that the applicant received a fair trial.
[6] The applicant also seeks to argue that his right to procedural fairness on this appeal is prejudiced because there is no audio recording and no transcript of the hearing before the SCACJ.
[7] The SCACJ's determination, at para. 15 of his reasons, is a determination about the reasonable exercise of judgment in the particular circumstances of this case. It does not extend beyond the four corners of this case and it is not clearly wrong. Nor do the other issues raised by the applicant meet the test in R. v. R.R.
[8] Accordingly, this application is dismissed.
"Alexandra Hoy A.C.J.O."
"Doherty J.A."
"B.W. Miller J.A."