Court of Appeal for Ontario
Date: 2018-12-27 Docket: C62742
Judges: Hourigan, Pardu and Harvison Young JJ.A.
Between
Her Majesty the Queen Respondent
and
Chunqi Jiang Appellant
Counsel
For the Appellant: Delmar Doucette, Andrew Furgiuele and Zahra Shariff
For the Respondent: Milan Rupic and Rebecca Schwartz
Heard: December 4, 2018
Appeal from Conviction and Sentence
On appeal from the conviction entered by Justice Gisele M. Miller of the Superior Court of Justice on June 26, 2014, sitting with a jury, and from the sentence imposed on August 29, 2014.
Decision
Pardu J.A.:
[1] Introduction
[1] Chunqi Jiang appeals from his conviction for second degree murder. The Crown failed to disclose relevant evidence until partway through the appellant's cross-examination. These were records relating to the appellant's mother's health, which were relevant to the appellant's defence that his mother killed the victim. Whether she was relatively robust or quite infirm had a bearing on the likelihood that she, rather than the appellant, was the killer. The mother died as a result of cardiac arrhythmia several weeks after the death of the victim in this case.
Mistrial Application
[2] The appellant applied for a mistrial after learning of the Crown's failure to disclose. The trial judge concluded that there had been a serious breach of s. 7 of the Canadian Charter of Rights and Freedoms caused by the late disclosure of the medical records:
[66] I am satisfied that actual prejudice has been shown in respect [to] the fact that counsel for Mr. Jiang were unable, as a result of the late disclosure, to address in examination in chief of Mr. Jiang, the contents of the medical records and his awareness of the various health issues of Fen Gen Zhang that are apparent in the records.
[67] The conduct of the Crown in holding back the medical records until after Mr. Jiang was giving testimony and had completed examination in chief is a serious breach of Mr. Jiang's right to disclosure….
[3] At the hearing of the mistrial application, the trial judge heard from Dr. Pickup, a forensic pathologist, about the significance of the medical records as they related to the mother's physical abilities. She understood Dr. Pickup to have testified at that time that the mother may well have been capable of inflicting the injuries sustained by the victim. On that basis, expecting that Dr. Pickup would testify to the same effect at the trial, she dismissed the application, concluding that any unfairness from the failure to disclose the evidence could be neutralized before the jury. Dr. Pickup however changed his evidence before the jury to say that it was beyond his competence as a forensic pathologist to express an opinion about the mother's physical abilities.
Arguments on Appeal
[4] The appellant and the Crown agree on the test to determine whether an appellant is entitled to a new trial as a result of non-disclosure by the Crown, derived from R. v. Dixon, [1998] 1 S.C.R. 244, and R. v. Skinner, [1998] 1 S.C.R. 298. An appellant is entitled to a new trial if he "demonstrates that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process": Dixon, at paras. 31-35. A trial is unfair if it is "reasonably possible that disclosure [of the undisclosed item] would have had an impact on the conduct of the defence at trial": Skinner, at para. 12.
[5] The Crown submits that the non-disclosure ultimately enured to the appellant's benefit because of the way the trial unfolded and that the trial judge's decision to refuse the mistrial application was correct. He submits that it was the Crown, rather than the defence, who lost credit with the jury and that by the end of the trial the non-disclosure meant nothing as Crown counsel conceded that the mother would have been physically capable of inflicting the fatal injuries.
[6] The appellant submits that his defence would have been conducted differently had the medical records been disclosed before his examination in chief. He would have introduced the evidence about his mother's health in his own examination in chief, had he known it would be an issue, thus blunting the ability of the Crown to suggest he was deliberately concealing the real state of her health. The appellant also submits that the manner in which the Crown cross-examined him about his mother's health, before the records were disclosed, undermined his credibility in the eyes of the jury, and that this was compounded by the Crown's closing address. He also submits that there is a reasonable possibility that the non-disclosure affected the outcome of the trial.
The Events Leading to the Non-Disclosure
[7] Since there will be a new trial, I confine my review of the facts to the skeletal essentials required to deal with the grounds of appeal advanced.
[8] The following chronology describes the Crown's acquisition of the medical records, the failure to disclose them and the cross-examination by the Crown that alerted the defence to the non-disclosure:
Tuesday June 3: Crown counsel received the mother's OHIP records and sent them to Dr. Pickup but did not disclose them to the defence
Friday June 6: Crown counsel received the mother's medical records and sent them to Dr. Pickup but did not disclose them to the defence
Saturday June 7: The family doctor told the officer in charge that the mother had been relatively healthy
Monday June 9, at 01:14: Dr. Pickup sent an email note to Crown counsel in which he said, among other things, that the mother had had an exercise stress echocardiogram for her heart in December 2011 and "appeared to perform satisfactorily"
During the interval June 9-13: Dr. Pickup did not tell Crown counsel that the mother was very sick or that she had died of a heart attack
Monday June 9: Defence counsel started her direct examination of the appellant
Wednesday June 11: Defence counsel concluded her direct examination of the appellant; and Crown counsel began his cross-examination of the appellant
The Crown's cross-examination of the appellant: Led his counsel to suspect that medical records had not been disclosed
[9] In the course of his cross-examination of the appellant, the trial Crown first elicited evidence that the appellant was capable of physical labour and was stronger than the victim. The Crown then embarked on the following line of questioning:
Q. And your mother was very sick; wasn't she, sick physically at the time?
A. Why are you -- based on what are you saying my mother was very ill?
Q. Based on your mother's medical records, sir. I'm going to suggest to you -- well based on her post-mortem she died of a massive heart attack with 90 percent of her coronary artery blocked, are you aware of that?
A. I have never heard of that.
Q. All right. You -- your mother -- did you take your mother to a doctor in December of 2011 because she had -- she was experiencing chest pains?
A. I remember we just went to our family doctor to have a check up, that's all. But I don't remember the doctor ever mention to me that there's a huge issue regarding my mother's health.
Q. She -- she was -- she had to go to an Echocardiogram because of fears about her poor heart, right.
MS. INTERPRETER: Interpreter doesn't know how to translate Echocardiogram.
MR. McGUIRE: I don't know, a test that people get in order to check whether their heart is not working properly.
MS. INTERPRETER: Okay. Thank you.
A. I remember she mentioned those kinds of things to me.
MR. McGUIRE: Q. 'Cause you had the ….
A. But she was also very clear to me that she said she was only doing that under the doctor's suggestion and she also said it's not exactly for her it is to benefit the doctor.
Q. Okay. So that's -- are you seriously saying, sir, that no one has ever told you that your mother died of massive heart attack on September the 9th. No one has ever said that to you?
MS. WELLS: That's actually not accurate based on the medical evidence that we have. So if my friend is going to put something to my client, he should do it accurately.
MR. McGUIRE: All right.
MS. WELLS: Knowing the information that we from the doctor.
MR. McGUIRE: That she died of a 90 percent blocked coronary artery. Nobody ever told you that? I think that's a heart attack but maybe I'm wrong.
MS. WELLS: It's not.
MR. McGUIRE: All right.
A. I have never heard of that until today I don't know how my mother passed away. All I see was the location where my mother passed away there seem to be a pool of blood.
MR. McGUIRE: Q. Do you see those photos….
A. These photos with blood was taken by my friend.
Q. Do you see the photograph on screen here says -- this is your mom right here, this is her name, Fen Gen Jhang, correct?
A. Yes.
Q. It says dissolve one tablet under the tongue when having chest pain every five minutes as needed or three times. If no relief go to an emergency room. Are you aware that your mother was taking pills every five minutes for chest pains, sir?
THE COURT: If needed
MR. McGUIRE: If needed.
MS. WELLS: Your Honour, I have an objection to some of this 'cause it would appear that the -- the Crown may have medical records that the defence doesn't. So I'm going to ask to address something in the absence of the jury.
THE COURT: Okay. We'll ask the jury to step out.
[10] Contrary to what was suggested in cross-examination, the mother did not die of a heart attack but of a sudden cardiac arrhythmia which might not have earlier interfered with her ability to carry out normal physical activities. The mother's family doctor reported to the officer in charge on June 7 that the mother had been relatively healthy but had medical issues pertaining to her heart and anxiety about her relocation to Canada.
[11] Dr. Pickup had reviewed her medical records and reported to the trial Crown on June 9 that the mother had undergone an exercise stress echo on December 19, 2011 and had appeared to perform satisfactorily. Contrary to the suggestions put by the trial Crown, Dr. Pickup did not report that the mother was very sick, or sick physically.
[12] On the mistrial application, Dr. Pickup testified as follows:
Q. All right. Now in terms of just your review the lady's -- this lady's health records, the ones that -- that you received, can you advise Her Honour as to what -- first of all in -- in the course of your -- you're a pathologist and you're also a forensic pathologist, is that correct?
A. Yes.
Q. Are you -- is part of your duties and responsibilities from time to time reviewing health records to -- and forming opinions with respect to them?
A. Yes.
Q. Do you feel qualified to be able to look at these records and offer an opinion with respect to what they're about?
A. Yes.
Q. All right. And what's -- what's -- what did you -- what did you glean from your review of her records?
A. From the review of the medical records supplied, which are from the family doctor here in Canada there are basically four things that I gleaned from them. Number one is that she had high -- high blood pressure or hypertension and it was controlled with medication. So there are a number of reports here where her blood pressure is actually normal, but she's taking medication for it. She has changes in her retina, which is the -- the back of the eye that helps us to see that are a characteristic of longstanding hypertension or high blood pressure. She had decreased bone mineral density to the point that she was diagnosed with something called osteopenia, which is the stage before osteoporosis.
Q. Is that -- is that an unusual finding in somebody of her age?
A. Actually, no, most menopausal women will have some degree of osteopenia.
Q. Okay.
A. And because she had gone to her doctor on a few occasions complaining of chest pain or numbness in her arm, her doctor rightly so sent her for a stress test and the stress test that was performed was normal.
Q. It was what?
A. Normal.
Q. Okay. Is that -- is that your assessment of -- of her medical records?
A. Yes.
Q. All right. And -- and just in that regard, with that -- with your review of her medical records and your conduct of the post-mortem examination, are you able one way or the other to express an opinion about whether this woman would be capable of I guess committing the offence that -- with respect to the -- the lady who you -- the other lady you autopsied, Ms. Liu? Can you say one way or the other?
A. No.
Q. And -- and -- and explain that, why not?
A. Because people with significant coronary artery disease can live their lives and not know that they have significant coronary arteries until one day for reasons that are really unknown, their heart may spontaneously go into an abnormal rhythm.
[13] The trial judge reasonably interpreted this evidence as "evidence that Ms Zhang may well have been physically capable of inflicting the injuries to [the victim]" and held at para. 71 of her reasons for decision on the mistrial application that this was important evidence which effectively neutralized the prejudicial impact of questions posed to the appellant by the Crown relating to the medical records.
[14] At trial, however, Dr. Pickup testified as follows:
Q. Okay. Now in terms of your ability as a forensic pathologist, I mean maybe we have ideas of what you can actually say in court and what you can't say, but are you able to say, as a forensic pathologist, one way or the other, whether this woman would be physically capable of inflicting the injuries that you saw on -- on Guang Hua Liu?
A. No, that's really not a question for a forensic pathologist to answer.
Q. Okay. You can't -- you can't assist in that regard?
A. No.
Q. One way or the other?
A. No.
[15] In his closing submissions to the jury the trial Crown referred to the mother's health issues:
Ms. Wells in her argument said I'm going to suggest to you that she was physical incapable. Certainly not, she had two arms and two legs, I guess she's theoretically capable of doing this. But the reason we brought out the health information, both from her autopsy, health records, putting it together was to show you a factor that is involved in this. A factor that is just as relevant as their relative heights, just as relevant as their relative age, just as relevant as their relative -- as their relative build, the fact that this woman had health issues, full stop. It was led before you just so you would have a complete picture, so you would not be under any illusions as to what her state of health was. You've heard that evidence, you decide. I submit it's a relevant factor and that's for you to decide.
Analysis
[16] I am satisfied that there is a reasonable possibility that the non-disclosure affected the overall fairness of the trial process. The appellant was left stumbling in front of the jury to respond to factual assertions that were contradicted to some extent by the medical records which had not been disclosed. The clear inference suggested by the questions is that the mother was very ill and could not have killed the victim, that this was apparent to the appellant and that his testimony was not credible. Had defence counsel been made aware of the issues raised by the medical reports, it is likely she would have canvassed the mother's health issues in greater depth in examination in chief. This unfairness was compounded by the trial Crown's closing address suggesting that the medical evidence was led "so you would not be under any illusions as to what her state of health was." This was a return to the theme expressed in the Crown's cross-examination of the appellant about his mother's health.
[17] Just as in R. v. LAT (1993), 14 O.R. (3d) 378 (C.A.), the late disclosure of the medical records adversely affected defence counsel's ability to deal with credibility issues at trial.
[18] This in itself is sufficient to require a new trial. However, there is also a reasonable possibility that the medical records could support an argument that the mother was physically capable of inflicting the wounds on the victim. In cross-examination Dr. Pickup went so far as to say there was nothing in the records that said the mother was incapable of inflicting the fatal wounds. I do not read the trial Crown's closing submissions as a concession that the mother was so capable. Rather, the Crown was attempting to make a virtue of its tardy disclosure of the records.
[19] There is also a reasonable possibility that the non-disclosure had an impact on the outcome of the trial. Here there was a suggestion that the mother had some animus towards the victim because the victim had stolen precious jewelry from the mother. Because of the mother's antipathy towards the victim, and her presence in the home at the time of the killing, the mother's role in the killing, if any, was a live issue before the jury.
[20] I would accordingly allow the appeal and direct a new trial. It is not necessary to deal with the sentence appeal.
"G. Pardu J.A."
"I agree C.W. Hourigan J.A."
"I agree Harvison Young J.A."
Released: December 27, 2018
"GP"