ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: P603/08
DATE: 2012-01-09

BETWEEN:

HER MAJESTY THE QUEEN – and – QIAO ZENG Respondent

M. Medeiros, for the Crown
R. Pillay, for the Respondent

HEARD: February 22, 2011 at Toronto, Ontario

REASONS FOR RULING

PRIOR DISCREDITABLE CONDUCT

MICHAEL G. QUIGLEY, J.

Introduction:

[1] Qiao Zeng is charged under the Criminal Code with a number of offences arising from the alleged attempted murder of Wing Ching Chan on January 26 th , 2005 using a firearm. Those charges are attempted murder while using a firearm (s. 239), discharge of a firearm endangering life (s. 244), aggravated assault (s. 273), possession of a firearm for a purpose dangerous to the public peace (s. 88), pointing a firearm (s. 87), use of a firearm while attempting to commit the indictable offence of attempted murder (s. 85(1)), unlicensed possession of a firearm (s. 91(1)), possession of a loaded restricted firearm (s. 95) and possession of a firearm obtained by crime (s. 92(1)).

[2] On this application, the Crown seeks to introduce evidence of prior disreputable conduct of the accused.

[3] A trial on this indictment was scheduled to commence with a jury 10 months ago, on February 22 nd , 2011 but the absence of qualified interpreters resulted in the trial being rescheduled. The Crown was available in April of 2011. Defence counsel was not. The first date on which the trial could resume was January 4, 2012. However, a fully accredited interpreter was available for one day that permitted the voir dire to be held on the admissibility of the prior discreditable conduct evidence relative to Mr. Zeng.

[4] The Crown asks that evidence of Mr. Zeng’s prior relationship with Wing Ching Chan be ruled to be admissible. Specifically, the Crown seeks admissibility rulings relative to evidence of the accused’s prior involvement in the ownership and operation of marijuana grow-operations with the complainant, Mr. Chan. It also includes evidence of the dissolution of their relationship following Qiao Zeng’s alleged theft of the contents and property of two grow-operations that he ran in partnership with Mr. Chan.

[5] The Crown argues that this evidence will provide narrative and historical background to the jury relative to the relationship between these two actors that is critical in order to give context to the circumstances of this crime. Counsel for the defence argues that the prejudicial effect of that evidence outweighs its probative value and that it ought to be excluded.

[6] I have concluded that the probative value of the prior conduct evidence is high, and that it exceeds its prejudicial effect relative to Mr. Zeng. More importantly, even if there may be prejudicial effect caused to Mr. Zeng as part of the “baggage” that accompanies admissibility, I find that the evidence is essential to demonstrate that there was a prior relationship between these two men, which is an important factual element relative to the interaction between the two men at the time when Mr. Zeng is alleged to have attempted to kill Mr. Chan. I find that the prior conduct evidence is properly admissible for the purposes for which its admissibility is sought.

Background Relating to These Offences

[7] From about 2000 until January 2005, Wing Ching Chan was in the business of running illegal marijuana grow-operations. He often used residential homes in Scarborough area of Toronto as sites.

[8] Early in the morning of January 24, 2005, Mr. Chan was alerted to the security alarm sounding at one of his marijuana grow-operations located at 16 Belinda Square in Toronto. Mr. Chan immediately went to that area to investigate, accompanied by other members of his “group”, his “associates” or “crew” as he referred to them. After driving around the neighboring streets for some time, Mr. Chan and his group drove to a nearby MacDonald’s Restaurant parking lot located on Bamburgh Circle in Toronto. There, they found Wei Sheng Li (a.k.a. “Richard”) and Ding Pei Xu (a.k.a. “Ah Sa”) within that parking lot. They suspected that Li and Xu had been involved in setting off the alarm at 16 Belinda Square, presumably in the course of trying to break in. As a result, Mr. Chan and his associates kidnapped the two men and took them to one of his properties located at 18 Arnall Avenue in Scarborough.

[9] Over the course of January 24 and 25, 2005, Mr. Xu and Mr. Li were confined to 18 Arnall Avenue. They were repeatedly beaten by Mr. Chan and his associates as they sought to ascertain the nature of Xu’s and Li’s involvement in what was suspected to have been an attempted break-in at 16 Belinda Square. Sometime on January 25, 2005, Mr. Xu died as a result of the injuries he suffered in the course of those beatings.

[10] Then, in the early morning hours of January 26 th , 2005, Mr. Chan received phone calls from two of his female associates who had been sent to 16 Belinda Square to shut-off the power at the grow-operation located there. One of the two female associates advised Mr. Chan by cell phone that she suspected someone was again trying to break in to the 16 Belinda Square grow-operation. The other associate advised Mr. Chan by cell phone that she suspected that she was being followed in her vehicle by a van. Mr. Chan and the remaining members of his crew immediately jumped into their vehicles including the “company” mini-van, and drove to the Belinda Square area to help. While they were there, the second kidnap victim, Mr. Li managed to escape from 18 Arnall Avenue.

[11] Shortly after arriving in the area of 16 Belinda Square, two of Mr. Chan’s associates who were driving in the mini-van collided with another mini-van that they intercepted near 16 Belinda Square on a street called Wintermute Boulevard. The streets were snowy. Mr. Chan’s vehicle lost control. It collided with the back of the other mini-van. The two mini-vans than came to a stop. Their occupants emerged and Mr. Chan emerged from his vehicle.

[12] As Mr. Chan exited from his vehicle, he saw a person who he recognized to be the accused, Qiao Zeng. Mr. Chan knew him by the name of “Ah Long.” Ah Long exited from the passenger side of the second mini-van. Mr. Chan suggested that the men talk about the situation, but at that point, according to Mr. Chan, Mr. Zeng, is alleged to have reached inside his jacket, pulled out a handgun and pointed it directly at Mr. Chan.

[13] Mr. Chan ran and hid behind the vehicles while multiple gunshots rang out. Mr. Chan did not see who was firing the shots. Mr. Chan saw his two associates jump into their mini-van and duck for cover. He joined them in that vehicle and they attempted to drive the vehicle away. As Mr. Chan was driving the mini-van away, he claims to have seen Mr. Zeng shoot his gun at him. During this last sequence, Mr. Chan was hit by a gunshot in the side of his head, but he was not seriously injured. He was able to drive the mini-van away.

[14] Mr. Li went to the police authorities following his escape and on January 28, 2005, Wing Ching Chan was arrested and charged with the kidnapping and forcible confinement of Mr. Li and Mr. Xu. At that time Mr. Xu’s whereabouts were still unknown, but in November 2006 and January 2007, 18 to 24 months later, Mr. Chan finally gave statements to police admitting that Mr. Xu had died and that his associates had disposed of the body. Subsequent to those statements made to police, Mr. Chan was charged with the manslaughter of Mr. Xu. On March 15, 2007, Mr. Chan pleaded guilty to the manslaughter of Mr. Xu, the kidnapping and forcible confinement of Mr. Xu and Li, the aggravated assault of Mr. Li, and with discharging a firearm with intent to wound. He was sentenced to 15 years imprisonment less time spent in pre-trial custody.

[15] In the course of providing those statements to police in late 2006 and early 2007, Mr. Chan also informed police of Mr. Zeng’s involvement in the shooting near 16 Belinda Square on January 26, 2005. Mr. Zeng was charged with the offences that are the subject matter of this trial as a result of those disclosures. Mr. Chan is the principal Crown witness against Mr. Zeng.

Prior Discreditable Conduct: Association between Mr. Chan and Mr. Zeng

[16] Wing Ching Chan was introduced to Qiao Zeng sometime in 2002. Mr. Chan knew Mr. Zeng as “Ah Long”. The two men became friends. They dined together and they went to dance clubs together.

[17] Mr. Chan has testified that he and Mr. Zeng became partners in an illegal business running marijuana growing-operations together. Mr. Chan invested capital. Mr. Zeng oversaw the ground level operations of two locations.

[18] About a year after Mr. Chan and Mr. Zeng started their business together, all of their marijuana plants and equipment for growing marijuana were stolen from the two properties they operated together. Mr. Zeng began to avoid Mr. Chan in the months that followed. Mr. Chan’s evidence has been that the losses associated with the money invested in the operation coupled with the value of the lost marijuana would have been several hundred thousand dollars.

[19] Sometime later, Mr. Zeng and Mr. Chan ran into each other again at one of the dance clubs they frequented. The two men spoke about what had happened. According to Mr. Chan’s evidence, Mr. Zeng admitted stealing the contents of the two grow-ops and he apologized for doing so. He told Mr. Chan that he had needed that money to pay gambling debts that his father had accumulated. Evidently no revenge or recrimination was exacted by Mr. Chan. The two men then went their separate ways. That was evidently the last time they spoke before these incidents transpired. However, Mr. Chan heard through rumours in the community that Mr. Zeng had lied to him and had taken the proceeds of the theft of the grow-ops for himself.

[20] In addition to the business partner and friend relationship that existed between Mr. Chan and Mr. Zeng, Mr. Li evidently claims that he also was a friend of Mr. Zeng at the relevant time and that knew Mr. Zeng by the name of “Ah Dee.” Moreover, Mr. Li told the police that Mr. Xu and Mr. Zeng had also been acquainted before Mr. Xu met his unfortunate demise at the hands of Mr. Chan and his “associates.”

Positions of the Parties

[21] The Crown argues that the evidence of the prior discreditable conduct of the accused is highly relevant and material to the issues of motive and animus. He says this evidence is essential to complete the narrative of Mr. Chan’s description of his relationship with the accused. Finally, the Crown argues that the prior discreditable conduct evidence affirms Mr. Chan’s ability to identify Mr. Zeng and confirm his identity, The specific evidence that is relevant to those issues is the evidence of his prior involvement with Mr. Chan in the ownership and operation of marijuana growing operations, including evidence of the dissolution of that business and their relationship following the theft of the contents of the two grow-ops from Mr. Chan.

[22] Defence counsel takes the position that the prior disreputable conduct is irrelevant to Mr. Chan’s identification of Mr. Zeng because that identification is based first and foremost on the existence of a relationship between Mr. Zeng and Mr. Chan that was not limited to sharing the ownership of a criminal enterprise. Moreover, defense counsel suggests that the Crown will introduce expert evidence that Mr. Zeng's DNA was located at the scene of the shooting. As such, he claims there is no need to resort to presumptively inadmissible evidence of prior discreditable conduct to identify Mr. Zeng and risk occasioning prejudice to him.

[23] Defence counsel argues further that the evidence of prior discreditable conduct has no probative value with respect to the issue of motive and is not necessary to complete the narrative of the story. The evidence is claimed to be far removed in time and place from the events that give rise to the charges. Finally, defence counsel insists that the prejudice that would arise from the admission of the discreditable conduct evidence far outweighs any value that it might have to complete the narrative of the story.

Test for Admissibility

[24] Our courts have held that evidence of prior discreditable conduct or “similar fact” evidence [1] is generally inadmissible. The controlling decision is R. v. Handy . [2] It establishes that evidence of misconduct by the accused that goes beyond the charges and which does no more than blacken his character is presumptively inadmissible.

[25] Binnie J. observed [3] in Handy that nobody is charged with having a “general” disposition or propensity for theft or violence or whatever – or as in this case, propensity for attempted murder – and so the exclusionary rule generally prohibits character evidence to be used as circumstantial proof of conduct. It precludes the trier from inferring that the accused has the propensity or the disposition to do the type of acts that are charged and that he or she is therefore guilty of the offence, based merely on the prior discreditable conduct or prior alleged similar facts. The danger that calls for this presumptively exclusionary rule is that the jury might be confused and engage either in so-called “moral” or “reasoning” prejudice based solely on the prior discreditable conduct or similar fact evidence, rather than the evidence that relates to the charge itself.

[26] As an exception, however, evidence of prior discreditable conduct will be admissible where it is so highly relevant to an issue in question that its’ high probative value in relation to that question outweighs and displaces the prejudice caused by the evidence of prior illegal acts being presented to the jury. [4]

[27] In order for the prior discreditable conduct evidence to be admissible, the Crown must establish on a balance of probabilities that the probative value of the evidence in relation to a particular issue in the context of the particular case outweighs its potential prejudice and thereby justifies its reception.

(Decision text continues exactly as in the source...)

Michael G. Quigley J.
Release: January 9, 2012