Court of Appeal for Ontario

Date: 2017-06-19

Docket: C62687

Judges: Rouleau, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Chun Mei Li Appellant

Counsel

• Chun Mei Li, in person
• Scott Latimer, for the respondent
• Paula Rochman, amicus curiae

Heard: May 19, 2017

On appeal from: The conviction entered by Justice Anne Molloy of the Superior Court of Justice, sitting with jury, on January 12, 2016, and from the sentence imposed on July 5, 2016, with reasons reported at 2016 ONSC 4406.

Judgment delivered by: Trotter J.A.

A. Overview

[1] Chun Mei Li and Seyed Rezadoust had a child together – a girl, known in these proceedings as "M." In December of 2010, when M. was seven years old, Ms. Li took her to China. Ms. Li returned to Canada without M. To this day, M.'s whereabouts are unknown because Ms. Li refuses to tell anyone where she is.

[2] Ms. Li was convicted of child abduction, contrary to s. 282 of the Criminal Code, R.S.C. 1985, c. C-46. She was sentenced to seven years' imprisonment, less some credit for pre-sentence custody ("PSC"). She appeals against both her conviction and sentence. For the reasons that follow, the appeal from conviction is dismissed. The sentence appeal is allowed, but only as it relates to credit for PSC.

B. The Facts

(1) Introduction

[3] Ms. Li and Mr. Rezadoust were in a common law relationship when M. was born. They separated, but Mr. Rezadoust was actively involved in M.'s life. Arrangements to care for M. seemed to have worked satisfactorily until a dispute arose about Mr. Rezadoust taking on a greater caregiving role to accommodate Ms. Li's newly altered work schedule. When Mr. Rezadoust failed to react as rapidly as suited Ms. Li, the events leading to this case unfolded.

[4] In December of 2010, without Mr. Rezadoust's knowledge, Ms. Li took M. to China, where Ms. Li was born, and where she still had family. Ms. Li returned to Canada without M. on February 2, 2011. When Mr. Rezadoust found out a few days later, he reported the matter to the police. Ms. Li responded by making allegations that Mr. Rezadoust had assaulted and threatened to kill her and M. Mr. Rezadoust was charged with multiple criminal offences.

(2) The Family Court Proceedings

[5] Ms. Li soon commenced proceedings in the Ontario Court of Justice ("the Family Court") to obtain custody of M. At the time, she swore that M. was living in China with her grandparents and uncle. On April 11, 2011, Waldman J. ordered Ms. Li to return M. to Canada by April 30, 2011. She also made an interim order granting custody to Ms. Li, with no access to Mr. Rezadoust.

[6] Ms. Li did not return M. to Canada. Mr. Rezadoust applied to have Ms. Li found in contempt. Ms. Li then made further allegations of criminality against Mr. Rezadoust, leading to more criminal charges.

[7] On June 3, 2011, Waldman J. found Ms. Li to be in contempt of the previous order to return M. to Canada. She determined that 60 days' imprisonment would be an appropriate sanction. However, Waldman J. adjourned the proceedings until July 21, 2011 to provide Ms. Li with an opportunity to return M. to Canada. That date came and went, with Ms. Li failing to attend court and failing to return M. to Canada. Consequently, Mr. Rezadoust was granted sole custody of M.

[8] In the meantime, the charges against Mr. Rezadoust proceeded in the Ontario Court of Justice. When Ms. Li failed to attend court for the preliminary inquiry on March 12, 2012, the Crown stayed all charges.

[9] Ms. Li was arrested on October 2013 and began serving her sentence for contempt. She appeared in Family Court again on December 18, 2013. She entered into an agreement with Mr. Rezadoust to make reasonable efforts to have M. returned to Toronto by January 20, 2014. She failed to honour this agreement and provided a good deal of false information about those who were taking care of M. Ms. Li was found in contempt again and sentenced to an additional 45 days in custody.

C. The Criminal Proceedings

(1) Proceedings Leading Up to the Trial

[10] Ms. Li was charged with child abduction, contrary to s. 282 of the Criminal Code, and three counts of disobeying a court order (s. 127).

[11] While her case was in the Ontario Court of Justice, Ms. Li had retained and discharged counsel twice. Legal Aid Ontario refused to permit her to hire a third lawyer. Counsel was appointed as amicus curiae.

[12] Justice Fergus O'Donnell of the Ontario Court of Justice managed the case. On his own motion, he ordered a fitness assessment of Ms. Li. A psychiatric report was prepared by Dr. Brian Day. He was of the opinion Ms. Li was unfit to stand trial. Justice O'Donnell did not accept Dr. Day's opinion and the fitness issue was not pursued further.

[13] When Ms. Li appeared in court on June 4, 2015, she refused to answer any questions and declared that the proceedings against her were illegal, and that Mr. Rezadoust was a terrorist. She refused to elect a mode of trial. Further to ss. 536(4) and 565(1)(b) of the Criminal Code, Ms. Li was deemed to have elected trial by judge and jury. Given that neither Ms. Li nor the Crown requested a preliminary inquiry, Ms. Li was committed to stand trial in the Superior Court of Justice.

[14] Ms. Li made her first appearance in the Superior Court on June 25, 2015. Justice John McMahon managed the case. Ms. Li repeatedly delayed the proceedings with disclosure requests and refused to retain a lawyer. Ultimately, amicus curiae was appointed, and Ms. Paula Rochman was to conduct the cross-examination of Mr. Rezadoust, pursuant to ss. 486.3(3) and (4) of the Criminal Code.

[15] During his management of the case, McMahon J. expressed concern with Ms. Li's fitness. This was based largely on Ms. Li's repeated references to a conspiracy against her involving Mr. Rezadoust. McMahon J. also had access to Dr. Day's report. Having inquired into the matter, and recognizing that Ms. Li faced some mental health challenges, McMahon J. nevertheless concluded that Ms. Li met the test for fitness set out in R. v. Taylor (1993), 11 O.R. (3d) 323 (C.A.).

(2) The Trial

[16] Ms. Li's trial commenced on January 4, 2016 on a single count under s. 282 of the Criminal Code. The trial proved to be very challenging. In a decision released after trial, the trial judge explained her various pre-trial and mid-trial rulings: R. v. C.M.L., 2016 ONSC 5332. Of importance, Ms. Li initially refused to participate in the trial. She then became very disruptive. As the trial judge said in paras. 36 and 37 of her reasons:

She refused to behave appropriately in the courtroom and persisted in making ad hominem comments about the Crown and the amicus and Mr. R. She was belligerent and could not be controlled. When others tried to talk, she simply talked over them. She was loud and abusive. It was virtually impossible for anyone else to be heard….

I warned Ms. L. several times that if she did not behave appropriately, I would have no choice but to remove her from the courtroom and she could watch the trial proceedings by live video-stream. This had no effect on her conduct.

[17] Ultimately, Ms. Li was excluded from the courtroom for large portions of her trial under s. 650(2) of the Criminal Code and viewed the proceedings via closed-circuit television.

[18] The Crown's case at trial consisted of the Family Court orders, as well as the testimony of a police officer and Mr. Rezadoust. No defence evidence was called. The jury found Ms. Li guilty on the single-count indictment.

(3) The Sentencing Proceedings

[19] At the outset of the sentencing proceedings, the Crown at trial (not Mr. Latimer) raised the issue of criminal responsibility under s. 16 of the Criminal Code. After a lengthy discussion with the Crown and amicus, the trial judge ordered an assessment under the Mental Health Act, R.S.O. 1990, c. M.7, but not for the purposes of s. 16; the order was premised on gathering evidence of Ms. Li's mental state for sentencing purposes, as well as her fitness.

[20] Dr. Karen De Freitas conducted the assessment. Because Ms. Li refused to participate, Dr. De Freitas relied upon court transcripts and the input of counsel. Dr. De Freitas concluded that Ms. Li was "unfit to proceed to sentencing."

[21] The trial judge did not embark upon a formal fitness hearing. She recognized that Ms. Li suffered from mental illness and endorsed certain delusions. However, after reviewing Dr. De Freitas' report, in the context of Ms. Li's conduct throughout the trial, the trial judge concluded that there were no reasonable grounds to believe that Ms. Li was unfit to stand trial. She concluded that Ms. Li's behaviour was intentional and likely tactical. The trial judge provided very detailed and careful reasons for her decision: see R. v. C.M.L., 2016 ONSC 5499.

[22] The trial judge sentenced Ms. Li to seven years' imprisonment. Again, she gave detailed and extensive reasons: see R. v. C.M.L., 2016 ONSC 4406. In reaching her conclusion on the quantum of sentence, the trial judge was heavily influenced by the failure of Ms. Li to arrange M.'s return to Canada. As she said at para. 53:

In light of all of the circumstances, the most significant aggravating circumstance being the continued absence of the child with no knowledge of her safety and well-being, in my view seven years is an appropriate sentence for this offender and this offence.

[23] When Ms. Li was sentenced, she had been in custody for 982 days. The Crown submitted that she should receive credit on a 1.5:1 basis. The trial judge disagreed. As she said at para. 54 of her reasons:

Ms. [Li] is entitled to credit for the time she has already served. Assuming Ms. [Li] was telling the truth that she left M with her parents in China, it has always been within her ability to provide proper contact information so that M's well-being could be confirmed. Her continued stubborn refusal to provide this information means that every single day she has been in custody she has been continuing to hide this child from her father. I have a discretion as to whether an enhanced credit of 1.5:1 is appropriate. In these circumstances, I find that it is not. I am allowing the credit only on a straight 1:1 basis. [Footnote omitted]

[24] The trial judge deducted 120 days attributable to Ms. Li's contempt sentences, and credited her with 862 days, or 28.3 months, for PSC, which she rounded up to 29 months. She calculated the remaining time to be served as four years and seven months.

[25] In concluding her reasons, the trial judge once again mentioned the ongoing nature of the offence and made the following comments at para. 56:

It is not up to me to decide when, or if, Ms. [Li] should be released on parole. However, I do have a recommendation which I would urge upon the authorities. In my view, as long as Ms. [Li] persists in concealing the whereabouts of her daughter, she should serve every day of her sentence. On the other hand, if at any time Ms. [Li] does provide accurate information as to the whereabouts of her daughter and signs the necessary consents to have M returned to Canada, I would consider that to warrant her early release.

D. The Appeal

[26] Ms. Li filed her own Notice of Appeal on August 2, 2016, raising 14 grounds of appeal. On August 24, 2016, Ms. Rochman filed a solicitor's Notice of Appeal.

[27] During an appearance before this court on March 6, 2017, Ms. Li maintained that she had never retained Ms. Rochman, wished to argue her own appeal, and objected to Ms. Rochman's further involvement in the case. Consequently, Ms. Rochman was removed from the record as counsel, but appointed as amicus.

[28] In deciding this case, I have considered all grounds of appeal – those raised by Ms. Li, as well as those advanced by Ms. Rochman. I am not persuaded that any of the grounds of appeal against conviction should succeed. However, the sentence appeal must be allowed in part.

(1) Grounds of Appeal Raised by Ms. Li

[29] In her main Notice of Appeal, Ms. Li challenges the legality of the criminal proceedings. She pursues her theme about Mr. Rezadoust being a terrorist. Ms. Li also alleges perjury, judicial misconduct, obstruction of justice and a miscarriage of justice. In further correspondence forwarded to the court, Ms. Li elaborates on these grounds in more detail.

[30] There is no merit in any of Ms. Li's claims that the proceedings, either in the Family Court, or before the trial judge, were tainted with illegality. There is no foundation for the allegation of perjury. There is no substance to any of the allegations of impropriety or misconduct on the part of any of the judges or lawyers involved in this case.

[31] The experienced trial judge conducted this difficult jury trial with exemplary fairness. Ms. Li persisted in her attempts to frustrate the proceedings, both leading up to the trial, and after it began. Because of Ms. Li's disruptions, the trial judge had no realistic option but to exclude her from the courtroom. This step was not taken lightly. The trial judge's reasons for taking this course of action are fully justified in her post-trial reasons for ruling, discussed above.

[32] The evidence overwhelmingly established Ms. Li's guilt for the offence under s. 282 of the Criminal Code. In the absence of any evidence to the contrary, it cannot be said that the jury's verdict was unreasonable.

[33] In conclusion, I find no merit in any of the grounds of appeal raised by Ms. Li. She received a fair trial at which her guilt was established beyond a reasonable doubt.

(2) The Fitness Issue

[34] Ms. Rochman argues that, on a review of Ms. Li's conduct throughout the trial, Ms. Li's fitness was clearly in issue. She argues that the trial judge ought to have embarked on a fitness hearing under s. 672.23. I disagree.

[35] Focusing on the trial as a whole, Ms. Rochman argues that the issue of fitness should have been addressed before verdict, when Ms. Li's conduct was already problematic. However, the issue never really crystallized before the trial judge until the Crown at trial requested a psychiatric assessment after the jury rendered its verdict.

[36] Section 672.23(1) provides jurisdiction to conduct a fitness hearing "before a verdict is rendered." Given my conclusion that the trial judge did not err in failing to conduct a formal fitness hearing, I need not consider whether there is jurisdiction to embark upon a fitness hearing after verdict. This issue has arisen in a number of trial decisions: see R. v. Jaser, 2015 ONSC 4729; R. v. Nehass, 2016 YKSC 63; and R. v. Morrison, 2016 SKQB 259, 31 C.R. (7th) 362. This jurisdictional issue was not argued in this case. I express no view on the matter.

[37] Returning to the facts of this case, there were a number of occasions during the entirety of criminal proceedings when Ms. Li's potential unfitness surfaced. Every time the issue arose, the very experienced presiding judges (i.e., O'Donnell J., McMahon J., and the trial judge) properly inquired into the matter, short of embarking on formal fitness hearings.

[38] As I note above, the trial judge provided extensive reasons for her decision not to conduct a fitness hearing. She applied the governing test for fitness to stand trial established in Taylor, and confirmed in R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481, leave to appeal refused, [2008] S.C.C.A. No. 102. The trial judge acknowledged the presence of some disordered thinking on Ms. Li's part; however, she concluded that Ms. Li was still fit to stand trial. The trial judge was in the best position to make both this determination, and whether the threshold for embarking on a fitness hearing had been established. I can find no error in her analysis and would reject this ground of appeal.

(3) The Appeal Against Sentence

[39] Ms. Li and Ms. Rochman submit that the sentence imposed was unfit. Ms. Rochman also argues that the trial judge erred by refusing to grant credit for PSC on a 1.5:1 basis. Mr. Latimer for the Crown argues that the sentence is fit and that the trial judge properly exercised her discretion in relation to PSC.

[40] I am not persuaded that, in the circumstances of this case, the trial judge erred in imposing a sentence of seven years' imprisonment. The trial judge found that the harm caused by Ms. Li's actions, when combined with her very high degree of moral blameworthiness, warranted a sentence that was more severe than in comparable cases. This was not an error. As Wagner J. wrote in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11:

The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

[41] The trial judge made careful findings of fact, to which she applied the applicable principles of sentencing. She recognized that Ms. Li's cruel and reprehensible conduct has deprived M. of a life with her father. The crime is ongoing. Not only has Mr. Rezadoust been deprived of the right to parent his own child, he has been completely excluded from M.'s life. He does not know where she is in the world, whether she is well, or whether she wishes to have contact with him. This case calls out for a sentence that emphasizes the objectives of denunciation and general deterrence: see R. v. Pasdari, [2003] O.J. No. 319 (C.A.); and R. v. Mendez (1997), 32 O.R. (3d) 67 (C.A.), leave to appeal refused, [1997] S.C.C.A. No. 679, at pp. 75-76. While severe, I cannot say that the sentence imposed by the trial judge was demonstrably unfit.

[42] I respectfully take a different view of the trial judge's conclusion on credit for PSC. The trial judge denied Ms. Li 1.5:1 credit by using the same aggravating factor (i.e., the ongoing nature of Ms. Li's offending) that was already reflected in the seven-year sentence she imposed. This amounted to impermissible double counting of an aggravating factor: see R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 81-83; R. v. Codner, 2013 ONCA 138, 303 O.A.C. 91, at paras. 21-22; R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 53; and R. v. R.S., 2017 ONCA 141, at para. 16.

[43] I would allow the sentence appeal by crediting Ms. Li's 862 days of PSC at a rate of 1.5:1, for a total of 1293 days (or 43 months). I make no comment about how the Parole Board of Canada ought to administer Ms. Li's sentence.

E. Conclusion and Disposition

[44] The appeal from conviction is dismissed. The appeal from sentence is allowed in part, by crediting Ms. Li's PSC at a rate of 1.5:1. Accordingly, the seven-year sentence of imprisonment should be reduced by 43 months, instead of the 29 months deducted by the trial judge.

[45] I wish to express the court's appreciation to Ms. Rochman for her excellent assistance to the court on this appeal.

Released: June 19, 2017

G.T. Trotter J.A.

I agree Paul Rouleau J.A.

I agree David Paciocco J.A.

Footnote

[1] Two of Ms. Li's contempt sentences are referenced at paragraphs 7 and 9 above. During submissions it was agreed that Ms. Li had received a further 15-day sentence, for a total of 120 days.