COURT FILE NO.: SC 109/11 and 105/11

DATE: 20130225

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

TENNYSON LOI and

ZHI LIANG

David Mitchell, for the Crown, respondent

Adam Weisberg, for the appellant, Loi

Alan D. Gold, for the appellant, Liang

HEARD: November 19, 2012

Mr. Justice Kenneth L. Campbell:

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

A. Introduction

[1] The two appellants, Tennyson Loi and Zhi Liang, were convicted of various criminal offences in connection with the robbery of a Toronto massage parlour in the winter of 2009. Both appellants were ultimately sentenced to reformatory terms of incarceration and probation. They both appeal against their convictions and sentences. The appellants contend, essentially, that their convictions are unreasonable and not supported by the evidence and that their sentences are unfit and excessive. Further, Mr. Loi seeks to introduce fresh evidence on appeal in support of his claim that he was denied the effective assistance of counsel at trial. Mr. Loi claims that his trial counsel conceded his liability for these offences without his instructions or authorization.

[2] Before considering the merits of these claims, it will be helpful to begin with an understanding of the general nature of the case factually and the unusual way in which the proceedings unfolded at trial.

B. Factual Overview of the Case

[3] Shortly before 3:00 a.m. on February 25, 2009 three men, two of whom were wearing hoods, approached the “Sunshine Spa” massage parlour in the North York area of Toronto. The Spa Manager, Yihong “Charlie” Zhang, could see and hear them via the closed circuit security camera set up at the front of the premises. Initially, Mr. Zhang was not going to allow them to enter the Spa premises. He was concerned about a potential robbery. They were joined shortly thereafter by two other men. One of these men, Thang-Phong Bui, addressed Mr. Zhang as “Charlie.” Mr. Zhang recognized Mr. Bui as a previous customer. In the result, after the two men who had been wearing hoods removed them, Mr. Zhang allowed all five men to enter the Spa. All five men were young Asian males in their 20’s. They were the only Asian customers in the Spa at the time.

[4] Once inside, one of the men indicated that they wanted to see the girls. Mr. Zhang summoned a few of the women who were not already occupied with a customer to the lobby area of the Spa. However, rather than heading to one of the rooms with one of the attendants, as was typical in such circumstances, the five men remained in the lobby area. One of the men indicated that they did not like any of the women, and they would “wait.” Hai-Ngoc Do, one of the five Asian men, who Mr. Zhang also recognized as a previous customer, remained standing by the door, while the other four other men remained seated on a couch. This seemed odd to Mr. Zhang, and he shared his concern about the men with Mei Luo, one of the female attendants. Something was not right. Mr. Zhang thought the atmosphere was “no good.”

[5] Shortly thereafter, without warning or provocation, one of the men, Minh Dinh, got up and quickly physically attacked Mr. Zhang. He started punching Mr. Zhang repeatedly in the face. Mr. Dinh was quickly joined by the other four men and, collectively, they administered a sustained and savage beating to Mr. Zhang, punching and kicking him until he thought he was going to die. Mr. Zhang tried to protect himself by covering his head with his hands. He pleaded with his attackers to stop. During this attack, Mr. Zhang was robbed of some $600 or $700, his cell phone and a hand-written employee/customer schedule. He felt one of his assailants reach into his pants pockets and take his money. At one point in this attack, which ranged throughout the lobby area of the Spa, Mr. Bui “flashed a knife.”

[6] The trial judge drew the “inexorable conclusion” based upon the evidence that this attack was a “planned action on their part,” where the “five young men participated together as a gang” and were each liable as principals. The attack on Mr. Zhang left his head bloody, bruised and “looking like a pumpkin.”

[7] At some point, Mr. Bui broke away from the group and quickly came toward Ms. Luo, menacing her with his knife. Ms. Luo had been watching the attack on Mr. Zhang and testified that all five men were involved in the assault. When Mr. Bui dashed toward her with the knife, Ms. Luo ran out the back door of the Spa and escaped. She called 911 to summon the police. Both Ms. Luo and Mr. Zhang identified Mr. Bui as the man with the knife.

[8] Another Spa attendant, Christina Canagasabey, who was upstairs in her room, heard the commotion and thought the Spa was being robbed. A man came into her room and started to talk to her. Ms. Canagasabey identified this man as one of the appellants, Mr. Liang. He told her that he was not with the people causing the commotion. When two other men began to peer into her room, Mr. Liang pushed the door partially shut and began to unzip his pants. She thought she was going to be raped. Mr. Bui then entered her room armed with a knife. Another man also entered the room, later identified as Mr. Do, and gave the command to take her money. He took her purse, which contained her cell phone. Mr. Liang took approximately $260 to $280 from her, mostly in $20 bills. At some point during this theft, one of the men grasped her breast, apparently in an attempt to find any money that may have been secreted in her bra.

[9] At that point, there was a big bang at the front door and some loud knocking. When the men saw, by means of the surveillance camera monitor, that it was the arrival of the police, all of the men fled through the back door of the Spa premises. Ms. Canagasabey’s purse and cell phone were found abandoned at the rear of the Spa.

[10] Once the police managed to gain entry to the Spa premises, they were directed towards the escaping men. The police quickly pursued them and shortly apprehended all five men. The police found three of the men, Mr. Do, Mr. Dinh and Mr. Bui, a short distance away on Keele Street. The knife was found in a snow bank nearby.

[11] The police found the two appellants, Mr. Loi and Mr. Liang, hiding in an open field just north of the Spa. Initially, they were seen running through the field apparently trying to stay low to the ground. When they were apprehended, however, they were found lying face-down, side-by-side in this open field. A cell phone with blood on it and a bundle of cash, totaling some $760, were later found in the field just a few metres from where the appellants were arrested. The trial judge concluded that this cash was the money that had been taken from Mr. Zhang. Further, when he was arrested, Mr. Loi had the Spa employee/customer schedule, in Mr. Zhang’s handwriting, on his person. Mr. Liang also had numerous $100 and $50 bills in his pocket.

[12] When they were arrested, the two appellants and Mr. Do all had fresh blood on their clothing. Subsequent DNA testing revealed that this blood was Mr. Zhang’s. The possibility of a random match with an individual with the same DNA profile as Mr. Zhang was one in 840 billion.

[13] Mr. Zhang suffered serious physical injuries as a result of the beating he received at the hands of his assailants. At one point during the attack, Mr. Zhang lost consciousness. He was carried from the Spa on a stretcher, and was taken to the hospital by ambulance. He was bleeding extensively from his face and head. His nose was broken and he could not close his jaw. He needed more than ten stitches to repair the damage to his lips. His face was bruised and his head was swollen. He could not east solid foods and was on a liquid diet for some two months after the incident.

C. The Proceedings at Trial

[14] The two appellants and their three co-accused were all tried together by the Honourable Mr. Justice P. Taylor of the Ontario Court of Justice. The information charged the two appellants with the commission of nine offences all allegedly flowing from the events at the Sunshine Spa on February 25, 2009.

[15] More particularly, Mr. Bui was charged alone, in count six of the information with the alleged sexual assault of Ms. Canagasabey, while all five of the accused, including the two appellants, were jointly charged with all of the following nine offences:

• Count One: Assault causing bodily harm against Mr. Zhang;
• Count Two: Theft under $5,000 against Mr. Zhang;
• Count Three: Assault with a weapon (knife) against Mr. Zhang;
• Count Four: Assault with a weapon (knife) against Ms. Canagasabey;
• Count Five: Theft under $5,000 against Ms. Canagasabey;
• Count Seven: Assault with a weapon (knife) against Ms. Leonard (another female attendant at the Spa);
• Count Eight: Theft under $5,000 against Ms. Leonard;
• Count Nine: Assault with a weapon (knife) against Ms. Luo;
• Count Ten: Possession of a weapon (knife) for a purpose dangerous to the public peace.

[16] The trial commenced on April 12, 2010. All five of the accused, including the two appellants, were separately represented by counsel. The Crown’s case took place over some eight court days over a period of eight months. Thereafter, none of the accused elected to call any evidence.

[17] The Crown conceded that counts seven and eight should be dismissed against all of the accused as no evidence was called in support of the allegations relating to Ms. Leonard. Further, Mr. Bui sought a directed verdict of acquittal in relation to the charge of sexual assault against him. Eventually, these three charges (counts six, seven and eight) were dismissed by the trial judge.

[18] In an unusual turn of events, at the conclusion of the evidence, defence counsel for four of the accused, including counsel for both of the appellants, invited the trial judge to make findings of guilt in relation to the other seven counts of the information (i.e. counts one through five, and counts nine and ten). Counsel for Mr. Dinh took the lead in this regard, conceding that the evidence supported the conviction of the accused on those counts and inviting the Crown not to make any submissions. Counsel for Mr. Dinh described this as, essentially, a late “change in plea” by the accused. Counsel for Mr. Loi initially rejected this position, but later interjected, apologized for being “obtuse,” and stated that the position of Mr. Loi matches that of the others. At the conclusion of these submissions, the trial judge accurately summarized, without objection, the joint position of all of the accused (except Mr. Bui) as being that there was no need for the Crown to make submissions, and that there should be findings of guilt made with respect to all seven of the counts conceded. The trial judge then made the requested findings of guilt and adjourned the matter (with the exception of Mr. Bui) for sentencing.

[19] For practical reasons relating primarily to the availability of counsel, the sentencing proceedings in relation to the accused were staggered in time. At the sentencing proceedings on April 5, 2011, counsel for Mr. Do and Mr. Bui both argued that while their clients did not actually change their pleas, their position regarding liability was, essentially, a “de facto plea” of guilty to the alleged offences. Counsel for Mr. Do observed that this was “clearly a group effort” and that all were “equally responsible” for what occurred in the Spa. Counsel for Mr. Loi did not object to this characterization of the events, but argued that there was no evidence that Mr. Loi was “either a directing mind or leader of the group.” Moreover, when asked if he had anything to say, Mr. Loi personally indicated that he was “sorry for all this,” that he had not been “raised this way,” that he was going to “learn” from this, and that this “is never going to happen again.”

[20] Prior to his sentencing hearing, Mr. Liang changed counsel. At his sentencing hearing on May 11, 2011, Mr. Liang changed his position regarding his liability for most of these alleged offences, arguing that there was, in fact, no admissible evidence that he was either a principal or a party to the alleged offences – except the first two counts of the information in relation to the assault and theft against Mr. Zhang.

[21] On June 20, 2011 Taylor J. delivered his Reasons for Sentence in this matter. With respect to Mr. Liang, the trial judge found him guilty of the assault and theft in relation to Mr. Zhang, based upon the fact that all five of the men were observed to attack Mr. Zhang and all appeared to act in a planned way as part of a gang. The trial judge found that each accused, including Mr. Liang, were guilty as principals in this violent assault and theft. However, Taylor J. found Mr. Liang not guilty with respect to the alleged offences in relation to the other victims on the basis that he had a reasonable doubt as to whether Mr. Liang was a party to the coincidental crimes allegedly committed against the others in the Spa. In the result, Taylor J. sentenced Mr. Liang to five months imprisonment and a two year term of probation. With respect to Mr. Loi, the trial judge convicted him of all seven alleged offences and sentenced him to a total of 11 months imprisonment and a two year term of probation.

[22] The trial judge imposed these custodial sentences on the appellants after giving each of them credit for three months imprisonment to account for their pre-trial custody (seven days each) and their restrictive conditions of pre-trial release. Taylor J. also ordered both appellants to provide bodily samples for DNA analysis and issued weapons prohibition orders for a period of ten years each.

D. Analysis

1. The Appeal by Zhi Liang

a. Introduction

[23] As already mentioned, Mr. Liang was convicted at trial of only two offences, namely, assault causing bodily harm and theft under $5,000. Both offences were committed in relation to Mr. Zhang. Mr. Liang was acquitted of all of the other charges against him. Mr. Liang contends that his conviction for these two offences is unreasonable. Moreover, he argues that the trial judge misapprehended the important identification evidence in this case. Alternatively, Mr. Liang argues that the custodial sentence imposed by the trial judge is unfit and that, in light of his status as a youthful first offender and his other personal circumstances, he ought to have received a conditional sentence and probation.

b. The Appeal Against Conviction

1. The Scope of Appellate Review Under s. 686(1)(a)(i) of the Criminal Code

[24] In considering the argument regarding the reasonableness of the verdicts, regard must be had to the proper scope of appellate review under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, chap. C-46, which is made applicable to summary conviction appeals by s. 822(1) of the Code.

[25] The governing judicial authorities have made it clear that in discharging this reviewing function as to the sufficiency of the evidence, an appellate court must determine on the whole of the evidence adduced at trial whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. This process requires more than determining whether there is any evidence to support the verdict. Rather, the appellate court must thoroughly review, analyze, and weigh the evidence. This is not, however, a de novo assessment of the evidence wherein the appellate court substitutes its own view for that of the trier of fact. Rather, an appellate court may only interfere with a verdict if it can clearly articulate the basis on which the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. See: R. v. Yebes, [1987] 2 S.C.R. 168, at pp. 182-186; R. v. W.(R.), [1992] 2 S.C.R. 122, at pp. 129-132; R. v. Burns, [1994] 1 S.C.R. 656, at pp. 662-663; R. v. François, [1994] 2 S.C.R. 827, at pp. 835-838; R. v. Burke, [1996] 1 S.C.R. 474, at pp. 479-482; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 24, 36-42; R. v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 6, 27-30; R. v. H.(R.T.) (2001), 159 C.C.C. (3d) 180 (Ont.C.A.) at para. 31; R. v. Baltovich (2004), 191 C.C.C. (3d) 289 (Ont.C.A.) at para. 153-155; R. v. Dell (2001), 194 C.C.C. (3d) 321 (Ont.C.A.) at para. 24-26; Leave denied: [2005] S.C.C.A. No. 424; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 4, 12-13, 67-70, 76-84; R. v. R.(J.S.) (2012), 2012 ONCA 568, 112 O.R. (3d) 81 (C.A.) at para. 69-72; R. v. Linskyi, 2012 ONSC 7215, at para. 25.

2. Conclusion Regarding the Legal Propriety of the Verdict

[26] Having carefully examined all of the evidence in this case as it relates to Mr. Liang against this governing standard of appellate review, I am driven to the conclusion that the verdict reached by the trial judge, regarding the guilt of Mr. Liang for the assault and theft against Mr. Zhang, is a reasonable verdict which enjoys the support of the evidence. In reaching this conclusion, I have taken into account all of the following circumstances.

3. Criminal Liability on the First Two Counts Was Conceded at Trial

[27] First, in my view, both defence counsel acting for Mr. Liang consistently conceded at trial, in succession, that Mr. Liang was criminally responsible for, and should be found guilty of, the two counts of the information on which he has been convicted.

[28] At the December 16, 2010 appearance, Mr. Scully, who then acted on behalf of Mr. Liang, expressly elected to call no evidence and make no submissions in relation to any of the pending charges. Instead, he invited the trial judge to make the findings he deemed appropriate based on the evidence. Later, Mr. Scully confirmed that the Crown had presented sufficient evidence to make findings of guilt concerning his client regarding all of the pending charges. As there was no suggestion by Mr. Scully that the charges in relation to Mr. Zhang should be viewed differently, this broad concession of liability, of course, included a concession that Mr. Liang, was guilty of the two charges relating to Mr. Zhang on which he was ultimately convicted.

[29] Subsequently, at the May 2, 2011 appearance, Mr. Gold, who had by then taken over as counsel for Mr. Liang, retracted that all-encompassing concession and argued that Mr. Liang should be found not guilty in relation to the charges against him – except for the assault and theft charges regarding Mr. Zhang (the charges on which Mr. Liang now stands convicted). In advancing his new position in relation to the “five” other charges (the charges on which Mr. Liang has now been acquitted), Mr. Gold expressly stated that he had “nothing to say” about the first two counts of the information – the charges in relation to Mr. Zhang. Indeed, Mr. Gold stated that “[his] client’s responsibility for Counts 1 and 2 is not in dispute” [emphasis added]. In his closing submissions on this issue, Mr. Gold argued that, “[r]egarding these other offences, other than Counts 1 and 2,” the only evidence was “proof of mere presence” by Mr. Liang [emphasis added]. Accordingly, Mr. Gold asked the trial judge “to remove the findings of guilt” for his client “regarding counts three, four, five, nine and ten.” In his Reasons for Sentence at the conclusion of the case, just before acquitting the appellant Mr. Liang on his five other charges, the trial judge accurately observed that Mr. Gold “does not contest liability for the assault and theft in relation to Mr. Zhang.”

[30] This clear and consistent concession of liability by Mr. Liang’s experienced counsel – both Mr. Scully and Mr. Gold – strongly supports the reasonableness of the verdict. Indeed, by failing to advance any argument whatsoever as to how or why Mr. Liang might be acquitted in relation to the two charges involving Mr. Zhang, defence counsel for Mr. Liang effectively conceded that the guilt of Mr. Liang in relation to those two charges was the only reasonable verdict that was consistent with the evidence.

4. The Evidence Supporting the Verdict

[31] Given the evidence that was adduced by the Crown at the trial of this matter, it is perhaps not surprising that, at least in relation to the assault and theft involving Mr. Zhang, defence counsel for Mr. Liang did not contest his criminal liability.

[32] While Mr. Zhang was, understandably, not able to identify each of his assailants, he testified that when the assault began, he saw the other men stand up and “they all came at [him]” very quickly. He estimated that there were “at least three or four” men assaulting him as he was being struck by many different hands and feet.

[33] Ms. Luo clearly testified, however, that all five men were involved in the beating of Mr. Zhang. It was very noisy and chaotic as the men were beating Mr. Zhang with their hands and kicking him with their feet. She made her observations over the course of around two minutes from the lobby of the Spa just before Mr. Bui came towards her. In her examination-in-chief, Ms. Luo was clear that all five men were involved in the attack on Mr. Zhang. Further, Ms. Luo testified that, after Mr. Bui came towards her with the knife, the four other men continued to assault Mr. Zhang. Ms. Luo identified the five accused as the five individuals she witnessed inflicting the beating on Mr. Zhang. In cross-examination by defence counsel for Mr. Liang, Ms. Luo expressly confirmed that she saw Mr. Liang “punching.” When it was suggested to her that Mr. Liang did not, in fact, put his hands or his feet on Mr. Zhang, Ms. Luo replied, “I don’t think so.” In re-examination, Ms. Luo made it clear that, by this answer, she disagreed with the suggestion that Mr. Liang was not involved in the assault. In my view, considered in its entirety, this testimony from Ms. Luo directly implicated Mr. Liang as one of the principals in the assault that caused bodily harm to Mr. Zhang.

[34] Further, having carefully considered all aspects of the testimony of Ms. Luo, I am satisfied that the trial judge did not misapprehend the substance or effect of her important identification evidence. See: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont.C.A.); R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19.

[35] With respect to the theft charge, it is apparent that at least one of the motives underlying the physical attack on Mr. Zhang was the theft of his money. During the course of the attack on Mr. Zhang, one of his assailants reached into his pants pockets and stole some $600 or $700 from him. Later, Mr. Zhang was asked by one of his assailants, “[w]here is the money.” Mr. Zhang replied that it had already been given to someone else. When Mr. Liang was apprehended by the police, hiding face-down in an open field just north of the Spa, the police also found a bloody cell phone and some $760 in cash just a few metres away. This physical evidence directly links Mr. Liang to the theft of the money from Mr. Zhang. It was certainly not unreasonable for the trial judge to conclude as he did that this $760 was, in fact, the money that had been stolen from Mr. Zhang during the assault.

[36] There is other evidence that confirms the reasonableness of the conviction of Mr. Liang. First, Mr. Liang quickly fled from the Spa, just like the other four accused, when the police arrived at the premises. If Mr. Liang was not at least a party to the offences committed against Mr. Zhang, it is difficult to understand why he attempted to escape from the police. Similarly, shortly thereafter, Mr. Liang was found by the police hiding face-down in an open field within a few metres of a bloody cell phone and the $760 in cash stolen from Mr. Zhang. Again, if Mr. Liang was not at least a party to the offences against Mr. Zhang, it is difficult to understand why he was trying to hide from the police in a field in the middle of the night, and trying to dissociate himself from the $760 stolen from Mr. Zhang. Finally, Mr. Liang had blood on his clothes that revealed a DNA profile matching that of Mr. Zhang. This undisputed forensic evidence also ties Mr. Liang to the assault on Mr. Zhang. He certainly had to be close enough to Mr. Zhang physically during the course of the beating to have the blood of Mr. Zhang spatter onto his clothes.

5. The Silence of the Appellant

[37] At trial, Mr. Liang elected not to testify. This was, of course, his right. However, the law is clear that, on appeal, where the reasonableness of the trial verdict is attacked, an appeal court is entitled to view the silence of the accused at trial as indicating that he could not provide an innocent explanation of his conduct. See: R. v. Corbett, [1975] 2 S.C.R. 275, at pp. 279-282; R. v. B.(J.N.) (1989), 48 C.C.C. (3d) 71 (Man.C.A.); Affirmed: [1991] 1 S.C.R. 66; R. v. Peer and Katz (1995), 100 C.C.C. (3d) 251 (B.C.C.A.) at para. 48-49; R. v. Noble, [1997] 1 S.C.R. 847, at para. 103-106; R. v. Jolivet (1998), 125 C.C.C. (3d) 210 (Que.C.A.) at p. 276; R. v. Rowley and Currie (1999), 140 C.C.C. (3d) 361 (Ont.C.A.) at para. 19-21; R. v. Wang and Lo (2001), 153 C.C.C. (3d) 321 (Ont.C.A.) at para. 44; R. v. Dell, at para. 35; R. v. Glave, 2011 ONCA 111, at para. 11; R. v. Linskyi, at para. 26.

[38] In the circumstances of this case it is appropriate to conclude that Mr. Liang could not have provided any “innocent explanation” for his conduct at the Spa that night. Mr. Liang must have known whether he was involved or not in the beating of Mr. Zhang and in the theft of his money. But instead of testifying in support of any potential exculpatory version of events, Mr. Liang remained entirely silent. This testimonial silence from Mr. Liang also supports the reasonableness of the verdict in this case.

6. Conclusion

[39] In his Reasons at the conclusion of the case the trial judge concluded that it was “clear that the five men all attended simultaneously and engaged in the assault on Mr. Zhang.” As Taylor J. found, the attack on Mr. Zhang commenced “[s]uddenly and without warning” when Mr. Zhang was “set upon by Mr. Dinh who was quickly joined by the other men.” The “inexorable conclusion” from the manner in which this assault started and quickly unfolded, was that this “was a planned action on their part.” Indeed, according to the factual conclusion of the trial judge, the “five young men participated together as a gang” – not in the sense of a criminal organization – but rather as a “group of young men banding together to achieve a goal.” Finally, with respect to the first two counts of the information, Taylor J. concluded that “all five accused participated in the assault and the theft from Mr. Zhang as principals.” In my view, considering all of the evidence in this case, these factual conclusions by the trial judge are eminently reasonable conclusions. Accordingly, the verdicts of guilty reached by the trial judge in relation to Mr. Liang in connection with the assault and theft offences committed against Mr. Zhang, are reasonable verdicts that are supported by the evidence.

c. The Appeal Against Sentence

1. Introduction

[40] At trial, the parties advanced widely divergent positions regarding the sentence that should be imposed upon Mr. Liang. The Crown sought the imposition of a 15 month reformatory term of imprisonment. Defence counsel argued, however, that a conditional sentence of imprisonment was appropriate. Ultimately, the trial judge sentenced Mr. Liang to a five month term of imprisonment and a two year term of probation (concurrent). Taylor J. indicated that he thought that an eight month term of imprisonment was required in this case given the gravity of the offences committed by Mr. Liang, but he imposed this sentence after giving Mr. Liang three months credit for his short period of pre-trial custody and the nature of the terms of his judicial interim release order.

[41] On appeal, Mr. Liang contends that this sentence is unfit and that he should now be given the conditional sentence he sought at trial. Mr. Liang argues that, in all of the circumstances, a term of actual imprisonment would serve no useful sentencing purpose, and that the operative principles of sentencing would be best served by a conditional sentence.

2. The Standard of Appellate Review

[42] Sentences imposed by trial judges are entitled to great deference. Indeed, the governing appellate court authorities collectively hold that, in the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis on appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Indeed, sentences imposed at trial should only be altered on appeal when they are clearly unreasonable, demonstrably unfit, or a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. See: R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46-50; R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 89-94; R. v. W.(G.), [1999] 3 S.C.R. 597, at para. 18-19; R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14-15; R. v. Ramage, 2010 ONCA 488, at para. 69-73.

[43] This same deferential standard of appellate review applies not only to the duration of the sentence imposed, but also to the type of sentence imposed. Accordingly, the decision of a trial judge regarding whether to impose a conditional sentence of imprisonment or an actual term of imprisonment upon an accused must be viewed through this same highly deferential lens of appellate review. See: R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 14-17, 46; R. v. T.(J.C.) (1998), 124 C.C.C. (3d) 385 (Ont.C.A.) at para. 12-14.

3. The Fitness of the Sentence Imposed

[44] Applying this governing standard of appellate review and considering all of the circumstances of this case, I simply see no proper basis upon which to interfere with the sentence imposed upon Mr. Liang by the learned and experienced trial judge. In reaching this conclusion, I have considered all of the following factors:

• The trial judge accurately understood the different sentencing positions that were being advanced by the respective parties.
• The trial judge accurately outlined the operative principles of sentencing. More particularly, Taylor J. properly articulated the principle of “restraint” that usually limits sentences imposed on youthful first offenders to non-custodial sentences or short terms of imprisonment based upon the sentencing considerations of individual deterrence and rehabilitation. At the time of sentencing, Mr. Liang was a 24 year old first offender. Taylor J. also properly observed, however, that “serious crimes of violence” provided an exception to this general rule and required the imposition of sentences that gave greater prominence to the objectives of denunciation and general deterrence. See: R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont.C.A.) at pp. 294-295; R. v. T.(K.) (2008), 2008 ONCA 91, 89 O.R. (3d) 99 (C.A.) at para. 41; R. v. Nelson, 2010 ONCA 870, at para. 8.
• The trial judge carefully considered all of the relevant sentencing principles surrounding the imposition of conditional sentences and reviewed, in detail, the effect of the leading decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.
• The trial judge thoughtfully considered the pre-trial circumstances of Mr. Liang, including his brief period of pre-trial custody, and the conditions that had been imposed upon him while subject to various judicial interim release orders prior to sentencing. See: R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont.C.A.) at para. 33.
• The trial judge took into account the fact that the Crown had elected to proceed by way of summary conviction and that, while the offences against Mr. Zhang involved a combination of violence and theft, the accused could not be sentenced as if this were a “robbery” as the accused had not been convicted of that more serious offence.
• The trial judge found as a fact that the attack on Mr. Zhang was a “planned action” or “group effort” on the part of all five of the accused, and that all of them had “participated together” as a “gang” of individuals who had banded together to achieve their collective goal. By “acting in concert,” the five men had a greater chance of success, and their joint plan was less likely to be abandoned by any individual in the group. Taylor J. suggested that the offences committed must be seen against the gang-like backdrop of the case.
• The trial judge appropriately remarked upon the “savage” nature of the beating that was inflicted on Mr. Zhang by the group of men. In this regard, Taylor J. accurately noted that the assault on Mr. Zhang continued in and around the lobby area of the Spa premises, caused Mr. Zhang to think that he was going to die, and left him with very serious physical injuries that took months of recovery. As one of the female attendants in the Spa commented, Mr. Zhang was beaten like a “sandbag,” and his head was so swollen it looked like a “pumpkin” when the beating was over.
• The trial judge indicated that the courts should seek to protect vulnerable individuals who are more susceptible to such offences by virtue of their employment. In this regard, Taylor J. noted that Mr. Zhang and the women who worked at the Spa late at night were vulnerable to attack. The trial judge accurately commented that this case involved a “cowardly attack on a vulnerable set of victims.”
• In response to the arguments that some of the accused may have been intoxicated, Taylor J. stated that while it was clear that some of the accused had been drinking, none of the accused approached the level of intoxication that would relieve them from their responsibility for these offences.
• On the topic of potential remorse, Taylor J. stated that it could not be said that the accused expressed any remorse by way of a “plea of guilty.” Rather, the Crown had been put to the proof of its case against the accused over a period of some eight months and had called all of its evidence before the accused decided not to contest their criminal responsibility. As Taylor J. accurately observed, in so doing, the accused effectively “bowed to the inevitable.” This was not seen by the trial judge as an aggravating circumstance, but only as a circumstance which disentitled the accused to the mitigation that would otherwise flow from the expression of remorse.
• The trial judge accurately observed that Mr. Liang had “excellent prospects” for the future and did well on judicial interim release. That remains true to this day. Since the date of these offences on February 25, 2009, Mr. Liang has complied with the terms of his various bail orders and has not been charged with any further offences. Further, the Pre-Sentence Report prepared in relation to Mr. Liang is very positive and suggests that these crimes are “highly incongruous” with his personality profile. Moreover, he continues to provide for his family financially and assist them with chores and transportation. As Taylor J. commented, viewed exclusively from the perspective of the accused, a conditional sentence might well be appropriate in terms of assisting in his rehabilitation.
• Taylor J. concluded, however, that in order to take into account the other principles of sentencing, and the “need to denounce and deter this behavior,” there were simply “no reasonable alternatives” to actual incarceration in this case. Notwithstanding the difficult family circumstances of Mr. Liang and his own personal background, Taylor J. concluded that his participation in the crimes against Mr. Zhang required an effective sentence of eight months imprisonment. As I have mentioned, the trial judge reduced this sentence by three months to appropriately credit Mr. Liang for his pre-trial custody and the various terms of his judicial interim release order.
• In addition, the trial judge imposed a two year term of probation upon Mr. Liang to help foster his rehabilitation. Taylor J. also imposed a weapons prohibition order for a period of ten years, and ordered the taking of a DNA sample.

[45] I see no error on the part of the trial judge that would justify appellant interference with the sentence imposed upon Mr. Liang. It was certainly open to the trial judge to conclude that in light of the gravity of the crimes against Mr. Zhang, especially the violent and prolonged attack on him by the five member gang of young men, which included Mr. Liang, there was a need to denounce the crimes and provide for an effective measure of general deterrence. It was also open to the trial judge to conclude that this required the imposition of a significant reformatory term of actual imprisonment, not the imposition of a conditional sentence. In imposing the precise sentence he did, Taylor J. committed no error or law or principle. The trial judge did not fail to consider a relevant factor or place undue emphasis on any appropriate factors. Moreover, the five month term of imprisonment imposed upon Mr. Liang is not clearly unreasonable, demonstrably unfit, or a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. In such circumstances, the appeal against sentence must be dismissed.

2. The Appeal by Tennyson Loi

a. Introduction

[46] Mr. Loi was convicted of a total of seven offences (counts one through five and counts nine and ten). On appeal, Mr. Loi contends that, at trial, he was denied the effective assistance of counsel. He has tendered a body of fresh evidence in support of this argument. In the alternative, Mr. Loi argues that the 11 month reformatory term of imprisonment imposed upon him by the trial judge is unfit and should be reduced.

b. The Appeal Against Conviction

1. The Effective Assistance of Counsel –The Governing Legal Standard

[47] To show that an accused has been denied the effective assistance of counsel, such that his or her conviction is properly viewed as a miscarriage of justice, the accused must establish: (1) the factual basis that underpins the claim; (2) that that the acts or omissions of trial counsel constituted professional incompetence; and (3) that a miscarriage of justice resulted from that incompetence. Accordingly, ineffective assistance claims have both a “performance” component and a “prejudice” component. The legal burden on the accused is not easily discharged. See: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont.C.A.) at p. 59; Leave denied: [1996] S.C.C.A. No. 347; R. v. B.(G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 5, 26-29; Strickland v. Washington, 104 S.Ct. 2052 (1984) at pp. 2064-2068; R. v. Hayes, [2003] O.J. No. 4590 (C.A.) at para. 62; R. v. Seepersad (2005), 198 O.A.C. 33; R. v. B.(M.), 2009 ONCA 524, at para. 7-8; R. v. G.(D.M.) (2011), 2011 ONCA 343, 275 C.C.C. (3d) 295 (Ont.C.A.) at para. 100-109.

[48] With respect to the “performance” prong of this standard, the law is clear that the analysis of the professional performance of trial counsel is measured on an objective reasonableness standard, and begins with a strong presumption that the performance of trial counsel fell within the broad range of reasonable professional assistance. The onus is cast upon the accused to prove that the impugned acts or omissions of trial counsel were not the result of reasonable professional judgment. In this assessment of the competence of trial counsel, the visionary 20:20 wisdom of hindsight has no place. Indeed, this reasonableness standard is one that is highly deferential to the tactics and strategies of trial counsel. It is not sufficient for the accused to demonstrate imperfect judgment. Instead, the accused is obliged to demonstrate that when measured against the governing objective standard, the impugned acts or omissions of trial counsel were so unreasonable that they fell below existing professional standards.

[49] As to the “prejudice” prong of this legal test, it is important to recognize that miscarriages may take many forms, and the incompetence of trial counsel may result in procedural unfairness, or may compromise the reliability of the verdict. Where it is apparent that the accused has suffered no prejudice, it will usually be undesirable to consider the performance component of the analysis.

2. The Fresh Evidence – Findings of Fact

####### (a) Introduction

[50] In relation to the allegation that Mr. Loi was denied the effective assistance of counsel at the trial of this matter, the parties compiled a body of fresh evidence. Most significantly, both Mr. Loi and his trial counsel (not Mr. Weisberg) provided affidavits addressing the relevant issues and were cross-examined at length on those affidavits. While their evidence coincided on some issues, their testimony diverged on some key aspects of the case. Most significantly, their evidence collided on the important issue of whether or not trial counsel conceded the criminal responsibility of Mr. Loi without instructions to do so.

[51] Without reviewing all of the details of that body of evidentiary materials, I make the following findings of fact as to how the trial proceedings unfolded in this case in relation to Mr. Loi and his trial counsel.

####### (b) The Agreed Factual Background

[52] Before the trial, Mr. Loi instructed his trial counsel that, notwithstanding the apparent strength of the Crown’s case, he wanted to plead not guilty, but he did not want to testify in his own defence. Mr. Loi would not, however, provide trial counsel with any alternative version of events or factual scenarios in order to assist him in advancing a potential defence. When they talked about the case together, Mr. Loi would not explain what happened but would only ask trial counsel “what should I say?” When trial counsel told Mr. Loi that he could not tell him what to say, the only instructions that trial counsel got from Mr. Loi were, essentially, “get me out of this.”

[53] Before the trial commenced, and as the trial progressed through the Crown’s case, offers were made by the Crown to Mr. Loi’s trial counsel with respect to resolving the case by way of a guilty plea by Mr. Loi. These offers were discussed at a variety of judicial pre-trial and mid-trial conferences (with judges other than the trial judge). On each occasion, trial counsel advised Mr. Loi to accept the proposed resolution of the case on the basis that it was in his best interests to minimize the sentence that he would likely receive. However, on each and every occasion, Mr. Loi rejected these offers, consistently maintaining his instructions that his trial counsel should continue to do his best to fight the case.

[54] There is no dispute between Mr. Loi and trial counsel as to these facts. It is in relation to the important events of December 16, 2010, after the Crown had closed its case, when trial counsel conceded Mr. Loi’s liability, that the evidence of Mr. Loi and trial counsel sharply diverge.

####### (c) The Evidence of Mr. Loi – The Unauthorized Concession of Liability

[55] According to Mr. Loi, at no point on December 16, 2010 did trial counsel ever seek or obtain his instructions or agreement to concede his guilt with respect to any count of the information. Rather, according to Mr. Loi, his trial counsel simply conceded liability, just like the other defence lawyers, but without speaking to him first. Mr. Loi testified that he was confused by this turn of events. He did not speak up in court immediately as he did not know if he could interrupt the court proceedings.

[56] Mr. Loi testified that, after court, he spoke to trial counsel about what he had done in court. At that point, trial counsel explained that he really had “no choice,” as there was “too much evidence” against him and the trial judge was going to convict him, and that this was the “best chance” to “minimize damage” on sentencing. Mr. Loi testified that he did not want his trial counsel to make this concession.

[57] Mr. Loi testified that, throughout the whole trial, he thought that he had the “least evidence” against him, and he always wanted his lawyer “to do his best to acquit [him] of the charges.” He did not want to plead guilty or concede his alleged guilt.

[58] Later, according to Mr. Loi, he asked his trial counsel to reopen the case, just as defence counsel for Mr. Liang had done. Trial counsel responded that it was too late and that he would have to appeal when the case was over.

####### (d) The Evidence of Trial Counsel – Oral Instructions From Mr. Loi

[59] According to trial counsel, his concession of liability was only made after talking to Mr. Loi and receiving his oral instructions to make this concession.

[60] More particularly, trial counsel testified that during a recess almost immediately after the Crown closed its case, there was a meeting amongst all of the defence lawyers on this case in the hallway of the courthouse. At that meeting, it was unanimously agreed that the best course of action, in order to try to mitigate the sentences for their respective clients, was to concede that the evidence was sufficient for the court to make findings of guilt on counts one through five, and counts nine and ten of the information. According to trial counsel for Mr. Loi, it had already become “pretty clear” to all the defence counsel that the accused would be convicted.

[61] According to trial counsel, immediately following this meeting, he met with Mr. Loi and explained the views of all counsel. Trial counsel told Mr. Loi that the Crown had a very strong case, conviction was imminent, everybody else was going to concede liability, and he advised Mr. Loi that they should do the same. After discussing the issue of sentence, Mr. Loi agreed with this advice.

[62] Trial counsel conceded that he took no notes of this (or any) meeting with Mr. Loi, and took no written instructions from Mr. Loi regarding this important change in his position. Trial counsel explained that this all happened during a short court recess and he did not have time to get written instructions from Mr. Loi. When court resumed following the recess, trial counsel for Mr. Loi made the concession that had been agreed upon.

[63] In cross-examination, trial counsel for Mr. Loi admitted that, in his initial discussions with appeal counsel for Mr. Loi about how the liability concession came to be made in court, he did not make any mention of getting instructions from Mr. Loi prior to making the concession in open court.

####### (e) The Transcript of the December 16, 2010 Court Proceedings

[64] The transcript of the court proceedings on December 16, 2010 does not support the recollection of events provided by trial counsel for Mr. Loi. Rather, this transcript supports the version of events provided by Mr. Loi. This transcript reveals the following chronological series of events:

• After the Crown closed its case, counsel for Mr. Do stated that he had no motions and he elected not to call any evidence. Counsel for Mr. Liang then asked for a recess to engage in discussions that might “shorten matters considerably.” The trial judge indicated that he would be content to grant this recess, but he first wanted to learn whether the other counsel had any motions or anticipated calling any defence evidence. Counsel for Mr. Dinh indicated that he had no motions and he did not anticipate calling any evidence, but he also wanted an opportunity to talk to his client. Counsel for Mr. Loi indicated that his comments were “similar” to counsel for Mr. Dinh, and he had no motions. Counsel for Mr. Bui indicated that he did not anticipate calling any evidence, but he would be bringing a directed verdict motion. Counsel for Mr. Liang indicated that he wanted an opportunity to speak with his client and the Crown. At that point, the trial judge adjourned court for the requested recess.
• Upon the resumption of proceedings, the trial judge noted that the planned recess had been extended when he had been advised that counsel needed more time. Even thereafter, however, some counsel had not returned to court at the appointed time. Clearly, the parties all had the benefit of an extended recess.
• At the resumption of the proceedings, some other issues were briefly addressed, including counts six, seven and eight, which were ultimately dismissed.
• The trial judge then noted that counsel for Mr. Do had already indicated that he had no motions or witnesses, and he turned to counsel for Mr. Dinh. At that point, counsel for Mr. Dinh began to make his liability concessions. During these submissions, counsel for Mr. Dinh not only confirmed that he would be calling no evidence, but he invited the trial judge to conclude that the evidence supported convictions in relations to the first three counts of the information. He indicated further that the Crown need not make any submissions in relation to those counts. Counsel indicated that he had already reviewed the matter with his client and characterized this as, in effect, a late “change in plea” on the part of Mr. Dinh.
• Before counsel for Mr. Dinh could address the other counts, the trial judge turned to counsel for Mr. Loi and asked for his position. In response, trial counsel for Mr. Loi said: “Our position remains the same as [it] was previously.” When the trial judge asked for clarification as to whether counsel had said that his position was the “same” as counsel for Mr. Dinh, or whether his position “remains the same,” trial counsel for Mr. Loi stated: “It remains the same, not the same as [counsel for Mr. Dinh] that … I’m not calling any evidence … [and] I have no motions. [emphasis added]
• Counsel for Mr. Liang stated that his position was the “same” as counsel for Mr. Dinh, in that he was calling no evidence and was inviting the court to make the appropriate findings. He suggested that counsel for Mr. Dinh had not intended to limit his liability concession to the first three counts of the information.
• Counsel for Mr. Dinh resumed his submissions and indicated that, indeed, he was prepared to concede that the evidence also supported findings of guilt with respect to counts four and five and counts nine and ten of the information, and that, accordingly, the Crown need not make any submissions on those counts. Counsel for Mr. Dinh conceded that there was simply “no contest” on those additional counts.
• Counsel for Mr. Do briefly advanced the same position as that articulated by counsel for Mr. Dinh, namely, that the Crown had “presented sufficient evidence” for the trial judge “to make findings of guilt” in relation to “all those counts.” Counsel for Mr. Liang expressly confirmed that his position was the same as counsel for Mr. Dinh.
• At that point, counsel for Mr. Loi interjected, apologized for being “obtuse,” and stated: “If our position could match those that have been previously stated, I would appreciate that … for Mr. Loi.” [emphasis added]
• The trial judge then summarized all of these submissions by confirming that, with respect to all four accused, namely, Mr. Do, Mr. Dinh, Mr. Loi and Mr. Liang, “there is no need for the Crown to make submissions” and that the trial judge could “make findings of guilt with respect to all the counts.” After confirming that there was no joint submission regarding the issue of sentence, Taylor J. made the requested “findings of guilt” against the various accused.

####### (f) Factual Conclusion – Unauthorized Concession of Liability

[65] It is apparent from this chronological history of the events on December 16, 2010, that when first asked for his position after the extended recess, trial counsel for Mr. Loi clearly stated that “our position,” meaning that of he and his client Mr. Loi, “remains the same as [it] was previously” (i.e. before the recess), namely, that he was not calling any evidence and had no motions. Moreover, trial counsel expressly stated that their position was “not the same as [counsel for Mr. Dinh],” who was the main spokesman for the other defence lawyers in articulating the liability concession.

[66] I am unable to conceive of how trial counsel for Mr. Loi could possibly have so clearly rejected any association with the liability concession made by counsel for Mr. Dinh if, as trial counsel claims, he had just finished discussing that very issue with Mr. Loi during the recess, and had taken his unequivocal oral instructions to agree with the liability concession that was going to be made by everyone else. Said another way, surely if trial counsel and Mr. Loi had just discussed this issue at the recess, and Mr. Loi had instructed his trial counsel to adopt the same concession of liability advanced by the other defence lawyers on behalf of their clients, trial counsel for Mr. Loi would not have expressly rejected that very concession on his first opportunity to adopt it.

[67] It was only after all of the other defence lawyers had clearly adopted the liability concession articulated by counsel for Mr. Dinh, that trial counsel for Mr. Loi interjected with his stark turn-about, and promptly changed his position from a rejection of the liability concession, to an adoption of the liability concession. Given that there was no court recess between the initial rejection and subsequent adoption of this liability concession, trial counsel for Mr. Loi simply could not have discussed this changed position during any recess.

[68] In cross-examination on his fresh evidence affidavit, trial counsel for Mr. Loi was predictably questioned about the events of December 16, 2010 as revealed in the trial transcript. Trial counsel suggested that he had not, in fact, changed his position that day, but that the court might have “misunderstood” what he had tried to say. That was why he subsequently “corrected [himself].” He agreed, however, that when he initially articulated his position he said “nothing about conceding guilt.”

[69] With respect, this explanation is simply not consistent with the transcript of the court proceedings that day. The transcript reveals that trial counsel did, indeed, change his position in court that day – in a fundamental way. The transcript also shows that this stark reversal of positions by trial counsel regarding liability did not happen over the course of a recess. Rather, both positions were expressed during the court proceedings after a recess. Finally, given the clear language used by trial counsel, it is difficult to imagine how this change in his position regarding the liability of Mr. Loi could realistically be the result of a simple misunderstanding. In short, I cannot accept this testimonial explanation by trial counsel.

[70] In all of the circumstances, I am satisfied that in conceding his client’s criminal liability in relation to counts one through five and counts nine and ten of the information, trial counsel for Mr. Loi was not acting upon the instructions of his client. Rather, I accept the evidence of Mr. Loi that the concession that was made by his trial counsel came as a surprise to him when it was made for the first time in open court.

3. The Miscarriage of Justice – An Unauthorized Concession of Liability

[71] Having drawn this factual conclusion, I am satisfied that in these circumstances the appeal by Mr. Loi must succeed. Mr. Loi’s convictions are based upon a concession of criminal liability that was announced in open court by his trial counsel without his prior instructions. Indeed, this concession of liability was not only without his instructions, it was inconsistent with the instructions Mr. Loi had persistently provided to his trial counsel over the entire course of the litigation in this case. Accordingly, these convictions can only be viewed as a miscarriage of justice. As Watt J.A. stated, in an analogous factual context, in R. v. G.(D.M.), at para. 108-109:

It is critical to keep in mind that, during the course of criminal proceedings, defence counsel make many decisions in good faith and in the best interests of his or her client. We ought not look behind every decision counsel makes, except where it is essential to prevent a miscarriage of justice. Defence counsel need not always obtain approval for each and every decision they make in the conduct of an accused’s defence …

On the other hand, some decisions, like whether to enter a plea of guilty or whether to testify, require instructions from the client. It is for the client, not for counsel to make these decisions. The failure to discuss these issues with the client and to obtain the necessary instructions may raise questions of procedural fairness and the reliability of the trial result and lead to a miscarriage of justice …

[citations omitted – emphasis added]

[72] In my view, a decision to concede criminal liability during the course of a trial is not unlike a decision to plead guilty either at the outset of a trial or during the course of a trial. A concession of liability by an accused is akin to a plea of guilty. It is a decision that should be made personally by the accused. In the present case, Mr. Loi was found guilty of the offences against him based upon a concession of criminal liability that came not from him, but from his trial counsel without his instructions. Mr. Loi’s convictions were, accordingly, the result of a miscarriage of justice and must be set aside.

[73] Given the procedural unfairness inherent in this miscarriage of justice, it is not for me to now draw any conclusions on appeal as to the likely result of this case had trial counsel not offered his unauthorized liability concession. Mr. Mitchell, for the Crown, fairly observed that the case against Mr. Loi was a formidable one, at least in relation to the offences against Mr. Zhang. After all, Mr. Loi was arrested shortly after the offences, hiding with Mr. Liang in a field, within metres of the money stolen from Mr. Zhang, in physical possession of the Spa employee/customer schedule that had been handwritten by Mr. Zhang, and with blood matching the DNA profile of Mr. Zhang on his clothes. On the other hand, Mr. Weisberg, appeal counsel for Mr. Loi, fairly observed that the case against Mr. Loi with respect to the other alleged offences was much weaker, and the trial judge acquitted Mr. Liang of those other offences based upon an arguably indistinguishable evidentiary foundation. In my view, however, as the procedural unfairness of the unauthorized liability concession by trial counsel taints all of the guilty verdicts equally, the only fair and appropriate result in this case in respect of Mr. Loi is to order a new trial on all the counts on which he had been convicted at trial.

4. The Absence of a “Plea Inquiry” by the Trial Judge

[74] Even if I were not satisfied that trial counsel for Mr. Loi had conceded the fundamental issue of criminal liability without the necessary instructions from his client, I would still set aside the convictions of Mr. Loi. In my view, in the unique circumstances of this case, the trial judge erred in failing to conduct any type of inquiry of Mr. Loi as to: (1) whether he was, in fact, voluntarily conceding his criminal liability; and (2) whether he understood the legal significance of such a concession. In the absence of such an inquiry of Mr. Loi, the trial judge could not have been satisfied that the concession of liability by trial counsel was unequivocal, informed and voluntary on the part of Mr. Loi.

[75] While Mr. Loi was clearly not formally changing his plea from “not guilty” to “guilty” so as to trigger the operation of s. 606(1.1) of the Code, trial counsel, in conceding the criminal liability of his client, was effectively accomplishing the same result. Moreover, there were unusual circumstances that required clarification of the position being advanced on behalf of Mr. Loi. First, the concession of liability made by trial counsel for Mr. Loi only took place, quite remarkably, at the very end of the trial, after all the evidence had been heard, and in the absence of any joint submission on the issue of sentence. Second, Mr. Loi had pled not guilty at the outset of the trial and appeared to contest his criminal responsibility throughout the course of the trial. Third, and perhaps most significantly, unlike the concessions made by defence counsel for the other accused, the liability concession made by trial counsel for Mr. Loi only came after a rejection of this concession just minutes earlier. Fourth, unlike the concessions of at least one defence counsel, the liability concession from trial counsel for Mr. Loi was not accompanied by any “on the record” statement that the concession was being made after consultation with, and on the instructions of, Mr. Loi personally. In short, the highly unusual circumstances surrounding the liability concession by trial counsel for Mr. Loi required the trial judge to make personal inquiries of Mr. Loi to ensure that this was a concession that he fully understood and voluntarily authorized.

[76] The learned trial judge did not have the benefit of the decision of the Court of Appeal for Ontario in R. v. G.(D.M.) at the time that this liability concession was made. The decision in R. v. G.(D.M.) provides helpful guidance on this very issue.

[77] At the outset of the trial proceedings in R. v. G.(D.M.), defence counsel indicated to the trial judge that the accused would be entering a plea of “not guilty” to the charge of sexual interference, but had given him instructions allowing the Crown to read in the allegations and indicating that the accused would not be disputing those allegations. Trial counsel stated that the accused understood that, normally, the Crown would have to call witnesses to prove its case, but in this case the accused was content that no witnesses be called and that the trial judge find him guilty. Defence counsel explained that he had spent a good deal of time with the accused and he assured the court that the accused understood that he was giving up his right to a full trial. Defence counsel indicated that his instructions from the accused were that he wanted to resolve the matter, fully aware of the position of the Crown on the issue of sentence. Unfortunately, no one asked the accused to confirm this understanding or express his personal agreement with the proposed procedure.

[78] After the accused entered his plea of not guilty, the Crown read a summary of the allegations. The accused was not asked to confirm the accuracy of those allegations. Then, without any submissions from counsel for either party, the trial judge entered a conviction and remanded the accused in custody for sentencing. At the subsequent sentencing hearing, the accused personally expressed some remorse for hurting the complainant, and the trial judge imposed an effective sentence of 15 months imprisonment and three years probation.

[79] On appeal, the accused contended that his conviction was a miscarriage of justice because he was denied the effective assistance of counsel, and the procedure adopted at trial was unfair and yielded an unreliable verdict. The Court of Appeal agreed, concluding, at para. 50, that the proceedings were “sufficiently flawed” that the conviction had to be set aside.

[80] In reaching this conclusion, the court noted, at para. 58, that the ineffective assistance claim provided the court with additional information not available to the trial judge, namely, that the accused consistently denied the complainant’s allegations, which was inconsistent with his counsel’s formal admission before the trial judge. Further, the accused was never asked, nor did his counsel ever expressly admit on his behalf, the prosecutor’s allegations.

[81] In delivering the judgment of the court in R. v. G.(D.M.), Watt J.A., at para. 55-57, observed that, while the case proceeded on the basis of a plea of not guilty, which required the Crown to prove the case beyond a reasonable doubt, the Crown adduced no evidence, but rather only read aloud the prosecutorial allegations against the accused, which did not at any point become formal admissions under s. 655 of the Code. Watt J.A. noted, at para. 57, that this was not even a “reasonable facsimile of a formal admission” as the accused never accepted or admitted the allegations as valid or true.

[82] As to the important legal obligations that were placed upon the trial judge as a result of the manner in which the trial unfolded, Watt J.A. concluded, at para. 59-61:

The circumstances of this case also required the trial judge to conduct an inquiry of the [accused] to ensure his [the accused’s] understanding of the nature and effect of the procedure being followed after his plea of not guilty.

The procedure followed here was the functional equivalent of a plea of guilty (or, in other jurisdictions, a plea of nolo contendere). The [accused’s] conviction despite his plea of not guilty, was a certainty. Plea inquiries are mandatory where pleas of guilty have been entered, even where an accused is represented by counsel. Where what occurs is the functional equivalent of a guilty plea, an inquiry should be conducted to ensure that the accused understands the nature and effect of the procedure and has voluntarily participated in it. It is all the more so in the case of an accused who is hearing impaired.

In my view, at least in combination, the manner in which the prosecutor discharged her burden of proof after the [accused’s] plea of not guilty, and the failure of the trial judge to conduct any inquiry into the voluntariness of the [accused’s] participation and his understanding of the nature and effect of the procedure caused a miscarriage of justice.

[emphasis added]

[83] In assessing whether the trial procedure resulted in a miscarriage of justice, Watt J.A. noted, amongst other things, that the accused had been consistent in his denial of guilt and insistent upon pleading guilty. The accused had rejected proposed resolutions of the case, including those arising from judicial pre-trial conferences. In the result, Watt J.A. concluded, at para. 67, that he was satisfied that the procedure followed at trial “caused a miscarriage of justice through procedural unfairness” in that the accused’s “unwavering denial of guilt” was “sideswiped” by a procedure that resulted in a de facto admission of guilt “without any inquiry into voluntariness” or the accused’s “understanding of the nature and effect of this procedure.” Watt J.A. reached this conclusion notwithstanding the assurance from defence counsel that he was sure he had discussed this procedural option with the accused as a means of effectively engaging in the plea negotiation process without a formal admission of guilt.

[84] In my view, the principles articulated by Watt J.A. in R. v. G.(D.M.) have direct application in the present case. Mr. Loi had pled not guilty at the outset of the trial and had persistently refused to acknowledge his alleged guilt. He consistently rejected a variety of offers made by the Crown that could potentially resolve the case by means of a negotiated guilty plea. In so doing, Mr. Loi unequivocally rejected the advice of his trial counsel. The position taken by Mr. Loi compelled the Crown to call all of its evidence in the usual adversarial context of a trial. After the Crown had closed its case, the court recessed to permit defence counsel to discuss matters amongst themselves, with their clients, and with the Crown. What the trial judge observed when court resumed was trial counsel for Mr. Loi first rejecting the liability concession made by other defence counsel, and then, shortly thereafter, once all other counsel had joined in this concession, accepting this same liability concession. Given the significance of this concession, being a wholesale reversal of the position taken by Mr. Loi, and the functional equivalent of a guilty plea by Mr. Loi, and given the manner in which this concession flowed, shortly after a rejection of precisely such a concession, in my view the trial judge was obliged to make inquiries of Mr. Loi personally. There was no other way of ensuring that Mr. Loi fully understood the nature and legal effect of the liability concession, and that he was prepared to, in fact, unequivocally accept his criminal liability in relation to these various offences in an informed and voluntary manner.

E. Conclusion

[85] In the result, for these reasons, the appeal by the appellant Mr. Loi is allowed, his convictions are set aside and a new trial is ordered on all of those counts. The appeal by the appellant Mr. Liang, however, against both conviction and sentence, must be dismissed. An order shall issue accordingly.

___________________________

Kenneth L. Campbell J.

Released: February 25, 2013

COURT FILE NO.: SC 109/11; 105/11

DATE: 20130225

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

TENNYSON LOI and

ZHI LIANG

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

Kenneth L. Campbell J.

Released: February 25, 2013