Court of Appeal for Ontario
Date: 2017-03-06 Docket: C59428 Judges: MacFarland, Pardu and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
Simon Yeung Appellant/Applicant
Counsel
M. Macchia, for the appellant L. Schwalm, for the respondent
Heard: March 3, 2017
Appeal Information
On appeal from the conviction entered on September 4, 2014 and the sentence imposed on September 4, 2014 by Justice E.J. Koke of the Superior Court of Justice, sitting without a jury.
Endorsement
[1] The appellant submits that the trial judge erred in convicting him of attempt to obstruct justice in the following respects:
- He did not properly apply the principle of reasonable doubt and shifted the burden of proof to the appellant.
- The evidence did not support a conclusion that the appellant had the intent to obstruct justice.
[2] We do not accept these submissions. The appellant's brother, Hau Duong was charged with cultivation of marihuana on a remote property north of Parry Sound. Arrangements were made to have Fred Williams, who was from Walpole Island, near Sarnia, falsely confess to the offence in exchange for a payment of $25,000. The Crown alleged that the appellant drove Williams to the remote property to familiarize himself with the layout and location so that his false confession would have some credibility. The appellant testified and denied taking Williams to the property.
[3] The trial judge concluded that Williams' evidence had "an internal consistency and complexity that underscored its reliability and credibility" and was corroborated by other evidence.
[4] The corroboration was found in the following:
Duong himself could not go to the property because of the terms of his recognizance. The appellant had worked on the property, and had inspected it after his brother's arrest.
Williams' evidence of his trip to the property and his observations there were supported by other evidence. He accurately described the appellant's vehicle as "like a silver Jeep." The appellant owned a gray Toyota 4 Runner. Williams and the appellant had never met before.
Williams' description of the layout of the property, access to that property, and that the house was blue was confirmed by date stamped photographs.
Williams said the appellant told him they could not go into the house because the pipes had burst and it was flooded. This was consistent with evidence that the appellant had inspected the property.
The cell phone evidence confirmed a considerable amount of communication amongst the parties organizing the false confession in the weeks and days preceding the trip to the property.
[5] These findings were reasonable on the evidence before the trial judge. Here acceptance of Williams' evidence necessarily meant a rejection of the appellant's evidence that he did not know Williams. As in R. v. Vuradin, 2013 SCC 38:
A trial judge's failure to explain why he rejected an accused's plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant's evidence and the accused's evidence conflicted, the trial judge accepted the complainant's evidence. No further explanation for rejecting the accused's evidence is required as the convictions themselves raise a reasonable inference that the accused's denial failed to raise a reasonable doubt.
[6] Once the trial judge accepted that the appellant drove from Aurora to the site north of Parry Sound, with a person he did not know and stayed there for 45 minutes touring the property before leaving, it was open to him to conclude that this trip was taken with a view to supporting the false confession, and that the appellant had the requisite intent to commit the offence.
[7] The trial judge concluded that he was convinced beyond a reasonable doubt of the appellant's guilty. It was not necessary to recite the R. v. W.(D.), [1991] 1 SCR 742 mantra in every case.
[8] For these reasons, the appeal is dismissed.
"J. MacFarland J.A." "G. Pardu J.A." "G.T. Trotter J.A."