Court File and Parties

Ontario Court of Justice

Date: 2019-05-15

Court File No.: Newmarket 18-04725

Between:

Her Majesty the Queen

— and —

David Lu

Judgment

Evidence and Submissions Heard: May 14, 15, 2019

Delivered: May 15, 2019

Counsel:

• Mr. Kevin Stewart, counsel for the Crown
• Mr. David Lu, Pro Se

KENKEL J.:

Introduction

[1] Mr. Lu is charged with failing to appear in court contrary to s. 145(2)(b) of the Criminal Code. Under that section it is an offence for a person who has appeared before a court to fail, without lawful excuse, to attend court as subsequently required.

[2] The central issue in this case involves Mr. Lu's intent. He testified that he was unaware of the court date. He relied upon his lawyer to attend court on his behalf and he was unaware he was required to attend on the specific date alleged. The Crown submits that he either knew the date and chose not to appear or was indifferent to his court dates and reckless in that regard. The Crown submits either suffices to prove liability for the offence.

Proof of the Failure to Appear

[3] Section 145(9) of the Criminal Code provides for the admission of evidence regarding an alleged failure to appear by way of a certificate of the court clerk. The Crown tendered copies of the Information on which it is alleged Mr. Lu failed to appear which includes the fail to appear endorsement and the prior bail with conditions all certified by the clerk of this court. (Information 16-05262)

[4] DC Nechey identified Mr. Lu as the David Lu who was charged along with others on Information 16-05262. DC Milliard identified Mr. Lu as the person arrested with respect to this charge. Identity in these cases may also be proved by indirect evidence – R v. St-Pierre, 2016 ONCA 173, at paras. 10-13.

[5] The evidence proves that Mr. Lu's matter was before the court and that he failed to appear on June 23, 2017. Mr. Lu conceded the failure to attend in his testimony.

Fail to Appear – Proof of Intent

[6] Mr. Lu submitted that a criminal conviction should not follow automatically from the mere fact of his non-attendance. He's right. The section 145 offences are true criminal offences requiring proof of intent. Mere carelessness is not sufficient to support a conviction – R v. Legere, [1995] OJ No 15 (CA), at para. 33, R v. Withworth, 2013 ONSC 7413, at para. 12. On the other hand, the intent requirement does not require the Crown to prove that the accused deliberately failed to appear or breached a bail condition intending that result. Wilful blindness and recklessness are sufficient to establish liability – R v. Withworth, at para. 12.

[7] The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries R v. Briscoe, 2010 SCC 13, at paras. 21 and 24. Here the Crown submits that Mr. Lu was aware of the need to keep track of his court dates to comply with his bail requirements including the direction to attend court as required by law. The Crown submits the evidence proves he deliberately chose to disregard that obligation due to circumstances at the time. That knowledge and choice is sufficient in law to prove the offence.

[8] Recklessness is a different concept. Recklessness involves knowledge of a danger or risk and the decision to persist in the conduct that might lead to that risk being realized – R v. Briscoe, at paras. 22-23.

[9] In fail to appear cases non-attendance in circumstances where no explanation was conveyed to the court at the time, with no attendance shortly afterwards indicating a simple mistake will generally be sufficient proof of the necessary intent – a prima facie case. The court must then consider the evidence as a whole including any evidence tendered by the defence in determining whether the Crown has met its burden to prove the non-attendance was intentional or due to the culpable choices inherent in wilful blindness or recklessness.

Reasonable Excuse

[10] Section 145(9) allows for a defence of reasonable excuse, the proof of which lies on the accused – R v. St-Pierre, 2016 ONCA 173. A defence of lawful justification is considered only after the court determines that the Crown has otherwise proved the case beyond a reasonable doubt. The proof of a justification or excuse is on the balance of probabilities – R v. Santeramo, [1976] OJ No 987 (CA).

[11] Even where a defence of reasonable excuse is raised, the ultimate burden of persuasion remains on the Crown to demonstrate beyond a reasonable doubt the absence of justification. If on the totality of the evidence there is an air of reality to the claim of reasonable justification, the court must determine whether the Crown has negated that claim beyond a reasonable doubt. The use of the qualifying word "reasonable" connotes a partially objective inquiry – R v. H.A., [2005] OJ No. 3777 (CA), at para. 74.

Analysis

[12] The Crown has proved that Mr. Lu failed to attend court as required on the date alleged. Mr. Lu did not re-attend court until after his arrest on October 20, 2017. At the time of his arrest he was in breach of numerous bail conditions including terms requiring him to reside with his surety in Quebec, to remain outside Ontario except when in the direct company of his surety and to notify the officer-in-charge of any change of address. The Crown submits that the evidence shows the failure to appear was either intentional or the accused was wilfully blind/reckless about his obligation to appear.

[13] Mr. Lu submits that the evidence shows that after his trial dates were set his lawyer at the time appeared on his behalf. At one point the lawyer even brought the matter forward to be spoken to. Eventually the case was adjourned to June 23rd, 2017 a date which he was not aware of. The Crown has not proved he intentionally failed to appear. The Crown has shown no evidence that his lawyer at the time was providing him with updates as to court appearances. In the alternative, Mr. Lu submits that the circumstances of his life at the time were busy and difficult and together provide a reasonable excuse for the non-attendance.

[14] I accept Mr. Lu's evidence that he was not aware of the June 23rd, 2017 court date. However, Mr. Lu was required by law and by a specific term of his recognizance to attend court as required. That obligation was his alone. In some circumstances a person may discharge that obligation by having counsel attend as agent, but only where they keep in regular touch with that counsel to provide ongoing instructions and ensure they are aware of the progress of their case including any need to attend court personally.

[15] Mr. Lu is right that on February 9, 2017 the matter was set for trial to commence June 12, 2017 and continue from July 12 to 14th for a Garofoli hearing then October 16-27 for trial. Had the matter gone directly over to the trial date of June 12th and then been brought forward to be spoken to in the interim by his counsel/agent I would agree with Mr. Lu that the Crown would not have proved the charge. But that's not what happened here.

[16] The endorsement on the Information on February 9th, 2017 shows there was an ongoing issue with Mr. Lu's retainer of counsel. That's the type of issue that is closely monitored so that Mr. Lu's co-accused do not arrive at their trial to find it cannot proceed because Mr. Lu is unrepresented. The Information shows Mr. Lu was adjourned to March 27, 2019 when a further judicial pre-trial meeting was held. The matter was then adjourned to the June 12th trial date, but was brought forward on June 1st by Mr. Lu's counsel due to lack of contact and instructions. The June 12th date was vacated and the matter was adjourned to June 23rd. On that date the certified transcript filed by the Crown showed that Mr. Lu did not appear and his counsel was removed from the record after the court considered an affidavit that outlined counsel's efforts over a lengthy time to get in touch with Mr. Lu and procure his attendance.

[17] We know from Mr. Lu's evidence that he did not attend June 12th, he didn't attend for the July trial dates nor did he attend for the October trial dates. He knew of his legal duty to attend court as required and of the specific term in his bail to that effect. His explanation that he did not maintain contact with his lawyer because he thought the next court date was set for the fall wasn't in fact true, and in any event he didn't attend court then either. Mr. Lu's counsel was unable to reach him because he was not living with his surety as required by his bail. He'd returned to the Toronto area and did not update his lawyer or the officer-in-charge as to his whereabouts.

[18] The circumstances show that Mr. Lu knew of the legal obligation to attend court as required and keep in regular communication with those attending on his behalf but he chose to disregard that obligation along with other obligations when he fled house arrest in Montreal and returned to Toronto.

[19] Mr. Lu submits in the further alternative that his personal circumstances at the time provide a lawful excuse:

• He was very busy at that time as his girlfriend was pregnant and about to give birth to his son. (Born July 11, 2017)
• He was not aware that his lawyer was trying to contact him as he moved from the Montreal address of his surety, admittedly in breach of several conditions of his bail. He says he moved so that his partner could give birth in the Toronto area.
• When he learned about the failure to appear he did not turn himself in as he also believed (correctly) that there were outstanding warrants for him on other matters.

[20] It's not plain that the decision to return to Toronto was motivated solely by the desire of his partner to have her baby in this area. Mr. Lu was not with a baby when he was arrested and he was in possession of a loaded handgun at the time, not something needed by someone focused on helping raise a child. In any event, the personal circumstances described by Mr. Lu, including the decision to breach several terms of a court order do not provide a reasonable excuse in law for the failure to appear.

Conclusion

[21] Considering all of the evidence, there is nothing that reasonably could leave a doubt. I find the Crown has proved the charge alleged beyond a reasonable doubt.

Delivered: 15 May, 2019.

Justice Joseph F. Kenkel