ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 2044/12
DATE: 2013 04 11

B E T W E E N:

HER MAJESTY THE QUEEN

Sean C. Doyle, for the Crown

Respondent

and -

SHENG QIANG LI

Sheng Qiang Li, In Person

Appellant

HEARD: February 19, 2013

REASONS FOR JUDGMENT

[On appeal from the Judgment of The Honourable Madam Justice C.A. Nelson,
of the Ontario Court of Justice on June 28, 2012]

Fragomeni, J.

[1] The Appellant, Mr. Sheng Qiang Li (Li), was charged with the following:

On or about 3rd day of December 2011 did unlawfully commit an assault on Haizhen Wang.

[2] The trial took place on June 15, 2012. On June 28, 2012, Justice Nelson provided her reasons for judgment orally and found Mr. Li guilty. He was given a conditional discharge with a period of probation for 12 months.

[3] Mr. Li sets out the following grounds of appeal:

The conduct of the police resulted in a wrongful arrest;
The Crown’s witness, Judy Tomlinson, was not credible or reliable;
The Crown’s conduct at trial was improper;
The trial judge was bias and this resulted in a wrongful judgment;
The Crown arguing the appeal has demonstrated bias and in so doing has breached Mr. Li’s constitutional rights.

SUMMARY OF THE TRIAL EVIDENCE

[4] Ms. Tomlinson testified that on December 3, 2011, as she returned to her home, she observed the young daughter of Mr. Li and Ms. Wang seemingly throwing a tantrum on the street. She said that she saw Ms. Wang walking to her (Ms. Wang’s) door where she was confronted by Mr. Li, who started yelling at her and then appeared to punch her in the arm after having grabbed her.

[5] Ms. Tomlinson then watched Ms. Wang go to the back (or side) of the house, from where she heard smashing sounds, and saw a struggle occur. “He’s shaking her and pushing her back and forth. I yelled at him to stop. Twice I called and I said ‘That’s enough. That’s enough. That’s abuse Richard.’”

[6] After calling out to Mr. Li, Ms. Tomlinson went into her house and continued to observe the struggle through her kitchen window. She said that she saw Mr. Li “pull her jacket off … threw it on the ground, stomped all over it. [Ms. Wang] picked it up … He pulled it out of her hand again. And he just kept pushing and pulling her.” Ms. Tomlinson called 911 around the time she made these observations.

[7] PC Webby arrived to find Mr. Li and Ms. Wang outside the residence, apparently in the midst of a heated dispute; both appeared visibly angry and upset. Mr. Li’s shirt had buttons missing consistent with a struggle.

[8] Mr. Li testified in his own defense. He said that he was resting, in his underwear, when he answered his door and his wife tried to drag him out to collect their daughter. In order to prevent his children (one of whom was inside the home) from observing a fight between their parents, Mr. Li locked his wife out. After a few minutes Mr. Li realized that his younger daughter was outside crying and he left the house to get her, but at this time Ms. Wang was not on the porch.

[9] After Mr. Li re-entered his home, he heard the sound of bottles breaking and from the window saw Ms. Wang throwing his shoes and tools from the shed. He exited his house and tried to stop her from throwing these items – which by now also included a paper bag containing yard waste – “by push[ing] her hand away from the stuff. And I didn’t start any action. Every time is – my action is a response to my wife’s action.”

[10] Ms. Wang was the second defense witness. She testified that she brought her daughter, who was throwing a temper tantrum, back to their house and knocked on the door. Mr. Li answered, and Ms. Wang, finding that he had no pants on, tried to drag him out of the house. Mr. Li then pushed her away from him, and she ran back to pick up her daughter, and returned. Possibly in response to her throwing bottles, Mr. Li exited the house; she said that she “just wanted to grab any – anything I could reach at the time. I just wanted to hurt my husband.”

[11] In cross-examination, Ms. Wang testified that she was currently residing with Mr. Li pursuant to a bail variation; that they occasionally discussed this case but tried to avoid the subject; that the reason she tried to pull Mr. Li out of the house in his underwear was because she assumed he was having a sexual relationship with the downstairs tenant; that she has no family or job in Canada; and that Mr. Li is her immigration sponsor (though she sometimes considers returning to China with him).

ISSUE: REASONABLE APPREHENSION OF BIAS

[12] The Appellant, Mr. Li, submits that the learned trial judge demonstrated her bias when she was explaining the trial process to him at the outset. Mr. Li points to the following words spoken by the trial judge:

And at the end, then you both will be able to summarize what – what you think the evidence – what – what are the important parts of the evidence and why you think I should find you guilty, find you not guilty. [Emphasis added.]

[13] Mr. Li argues that this statement proves that the trial judge had already made up her mind that he was guilty.

[14] The Crown submits that a careful review of the passage reveals that the trial judge was explaining to Mr. Li what both sides would do at the end of the case. The Crown would point to important parts of the evidence to support a finding of guilt, and Mr. Li would point to the important parts of the evidence to support a finding of not guilty. The Crown also argues in the alternative that it was a slip of the tongue that was corrected immediately.

[15] In R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484 the Court notes the following at para. 105, 111, and 113:

In contrast, bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues. A helpful explanation of this concept was provided by Scalia J. in Liteky v. U.S., 114 S.Ct. 1147 (1994), at p. 1155:

The words [bias or prejudice] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts). [Emphasis in original.]

Scalia J. was careful to stress that not every favourable or unfavourable disposition attracts the label of bias or prejudice. For example, it cannot be said that those who condemn Hitler are biased or prejudiced. This unfavourable disposition is objectively justifiable -- in other words, it is not "wrongful or inappropriate": Liteky, supra, at p. 1155.

The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.

[16] I agree with the position of the Crown on this issue. In looking at the transcript leading up to this comment by the trial judge, it is evident that the trial judge is explaining to Mr. Li how the trial process works. At page 8, she states:

…So Mr. Li, this is – you can just sit down for a minute, because I’m just going to talk, both of you can sit. I’m just going to talk for a few minutes. I’m not going to give you too much information up front, because I think it gets overwhelming. But I’m just going to give you a brief overview. But I’m just going to give you a brief overview of how this trial is going to be conducted…

[17] At page 9, she explains the process of arraignment and the Crown’s obligation to prove the charge.

[18] At page 10, she reviews the process of calling witnesses and questioning of witnesses:

…So when he’s finished asking questions of his own witness, then you get a chance to ask that person questions…

[19] At page 11:

…And once the Crown is finished their case, it’s your turn to decide whether you want to call evidence. You don’t have to call any evidence, because it’s the Crown’s obligation to prove beyond a reasonable doubt that you committed the offence, so you could stand up and say, the Crown hasn’t proven it.

And – and if you choose not to give evidence, I don’t hold that against you.

You might – and then you can call witnesses, you can call your wife, you can call whoever you want…

[20] When read within the context of the trial judge’s review of the trial process, it is my view that the trial judge was explaining to Mr. Li that at the end of the trial both parties would point to the important parts of the evidence that support their respective positions: a finding of guilty by the Crown, a finding of not guilty by Mr. Li.

[21] Even if my interpretation of her words is in error, the most that can be said about those words is that they were a slip of the tongue. Having just explained to Mr. Li the trial process, and the Crown’s obligation to prove the case against him, it would make no sense to then tell Li that he had to point out the important parts of the evidence that would convict himself. That interpretation is without any merit and lacks common sense.

[22] Further, the Crown, at para. 20 of his Factum, points to other parts of the trial that demonstrate that the trial judge conducted the trial fairly and objectively. At paragraph 20:

In any case, an objective observer would not conclude that Nelson J. had lost her objectivity or decided the case unfairly, especially considering that Her Honour carefully explained the trial process to Mr. Li, including the risks of his testifying as well as instruction on how to examine witnesses; ensured that a proper basis existed before permitting the Crown to refresh Ms Tomlinson’s memory; clarified with the Crown the purpose of his questioning PC Webby to prevent the admission of potentially hearsay evidence; and required the Crown to justify a line of questioning of Mr. Li and indicating that she was sceptical of its value. (see Transcript, at 6-12; 26, 36, 63, 69, 80.)

[23] Finally, after hearing all of the evidence, the trial judge again explains to Mr. Li the purpose of submissions. At page 127:

THE COURT: I just want to make sure there’s no other evidence, okay. All right. So the next stage is submissions, so you have a chance to, sort of, sum everything up. What it isn’t a chance for you to do is, tell me new things, okay. You can’t – this isn’t the time for you to give anymore evidence or provide any explanations or even respond to some of the evidence you’ve heard. What you have to do, based on what was said in the witness stand only, okay. You need to sum up what you want to say and fairly briefly. But focus on essentially what you’re going to tell me is, why I should find you not guilty of the charge before the court. That’s what you’re going to – want to focus on, the reasons why the evidence should convince me either that you’re not guilty or that the Crown simply hasn’t proven the case, okay.

[24] For all of these reasons this ground of appeal fails.

ISSUE: WHETHER THE LEARNED TRIAL JUDGE COMMITTED REVERSIBLE ERRORS IN THE FINDINGS

[25] Findings of fact attract considerable deference, on appeal. The reviewing court cannot set aside findings of fact made by a trial judge unless the trial judge either committed palpable and overriding error, or made findings of fact, including inferences of fact, that are clearly wrong, unreasonable or unsupported by the evidence R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (Ont. C.A.), at para. 31; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10

[26] In her reasons for judgment the learned trial judge notes that the Crown’s case is primarily based on the evidence of Mr. Li’s neighbour, Judy Tomlinson. At pages 1 and 2 of her reasons, the trial judge sets out the following:

Before discussing the evidence, I pause to confirm that the onus is on the Crown to convince me beyond a reasonable doubt that Mr. Li unlawfully applied force to Ms. Wang without her consent. This onus never shifts to Mr. Li.

Given that Mr. Li testified, I must consider whether I accept his evidence. If I do, and his evidence is exculpatory, I must find him not guilty of the charge. Even if I do not accept his evidence, if it nevertheless leaves me in a state of reasonable doubt, I must acquit him.

Finally, even if I do not accept Mr. Li’s evidence and it does not leave me in reasonable doubt, I can only find Mr. Li guilty if the Crown convinces me based on evidence which I do accept on the standard of beyond a reasonable doubt that he is guilty of the charge. It is important to emphasize that in determining whether I accept Mr. Li’s evidence, I do not consider his evidence, or that of any witness, in isolation.

[27] The trial judge then indentifies the primary issue as follows:

The primary issue is whether Mr. Li was legally entitled to use force against Ms. Wang in order to defend himself, his children or his property. There is also an issue as to the degree of force used by Mr. Li.

TWO ALTERCATIONS

Front Door Altercation

[28] The trial judge found that Mr. Li’s evidence did not support his stated defence that his actions were an attempt to protect his children. She did, however, find that in considering Mr. Li’s evidence during the altercation at the front door in the context of the evidence as a whole, it raised a reasonable doubt about whether Mr. Li simply reacted to an aggressive move by his wife. In the end, she resolved this allegation in favour of Mr. Li.

Altercation on the Driveway – Defence of Property

[29] The learned trial judge found that Mr. Li was not entitled to use force to defend his yard waste, and that even if he was so entitled the force used was excessive. At page 12 of her reasons she states:

…I conclude that Mr. Li was not entitled to use force against her to defend his yard waste. Indeed, in my view, the real purpose underlying his actions was his desire to continue the argument that had started at the front door. He was angry and became angrier when he heard his wife break a bottle. He wanted to exert control over her and acted on his desire by exerting physical control over her. Thus, Mr. Li is guilty of assault.

Further, for all the reasons expressed earlier in these reasons, I am satisfied beyond a reasonable doubt that Ms. Tomlinson’s description of Mr. Li shoving his wife back-and-forth over an extended period of time is an accurate description of what happened on the driveway. This [sic], even if Mr. Li was legally entitled to defend his yard waste, the force he used was excessive.

[30] The trial judge set out in detail at pages 6 to 9 her reasons for holding that Mr. Li minimized his actions. I will not reproduce that review in these reasons.

[31] In reviewing the testimony of Judy Tomlinson with respect to the driveway altercation, it was open to the trial judge to make the findings she did.

[32] Mr. Li is asking this court to re-try this case and reverse findings of fact that were not favourable to him. That is not the function of an appeal court.

[33] Mr. Li has not established that the trial judge committed any palpable and overriding error with respect to her findings of fact, or that such findings were unsupported by the evidence. The following excerpt of Ms. Tomlinson’s evidence at trial demonstrates that the trial judge had an evidentiary basis to make the findings she did.

Judy Tomlinson’s testimony: With Respect to the Driveway

Altercation

In-Chief

A. Then she went to the back of the house or the side of the house and I heard her pick up something out of her shed, it sounded like glass, because it went smashing on the ground. And then Richard came out of the house, down to the end of the – the back of the house and he – and this I saw her – him grab her. He’s shaking her and pushing her back and forth. I yelled at him to stop. Twice I called and I said, “That’s enough. That’s enough. That’s abuse, Richard”. I went in the house and where my phone is in my kitchen, I can look out my kitchen window into the back of their driveway. He pulled her jacket off. He threw it on the ground, stomped all over it. She picked it up. He pulled it out of her hand again. And he just kept pushing and pulling her.

Cross-Examination by Li

Q. You could only see – see my back, not – not my front?

A. This is in the driveway?

Q. Yeah.

A. I could see your back, your side. Because there was pushing and pulling going on.

Q. Okay.

A. And yes, I…

Q. I – I mean…

THE COURT: Let her finish please.

MR. LI: Q. I mean…

THE COURT: Sir, she’s not finished.

A. I did see you turn around and show me the shirt that – she ripped my shirt. And as far as I was concerned, ripping the shirt was not an issue. The pushing and pulling of your wife was the issue that I saw.

Q. On December 3rd, when we confront you on the driveway, you – you told me that stop, it’s abusing. And you didn’t see my – my – my response as what you said. Did you feel anger? And…

THE COURT: Just let her answer. You asked her a question. Did you feel anger?

A. Did I feel anger?

MR. LI: Q. Yeah.

A. No. I think I felt more concern for your wife.

Q. Okay.

A. And all I wanted you to do was to stop.

Q. Okay. If I did what you said, it’s kind of stop, will you call the police?

A. To be honest with you? If you had stopped when I asked you to stop, when I said, “That’s enough. That’s enough. That’s abuse Richard”, if you had stopped at that point and gone back into the house, I was not going to call the police. But when it didn’t stop and I saw continually pushing and pulling and ripping the jacket off of her, throwing it down, stomping on it. She picked it up, you pulled it away from her again and it landed – I remember it landing on the front lawn. If all of that had stopped, I wouldn’t have called. But that was all going on.

[34] I am satisfied that it was open for the trial judge to make the findings she did. She assessed the totality of the evidence and properly followed the W.D. analysis. She did not reverse the burden of proof.

[35] I agree with the Crown’s position that the trial judge’s findings and conclusions were supported by the evidence.

[36] For all of these reasons this ground of appeal fails.

ISSUE: Whether the Trial Judge Misapplied the Law of Defence of Property

[37] Mr. Li submits that the trial judge applied the wrong legal test when dealing with defence of property. Mr. Li argues that the trial judge wrongly applied section 38(1) of the Criminal Code instead of section 39(1) of the Criminal Code.

[38] Section 39(1) states:

Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

[39] The trial judge found that Ms. Wang was not a trespasser, she was his wife. Contrary to what Mr. Li asserts, it is clear that the trial judge was not applying section 38(1). Further, the trial judge, at page 11 of her reasons, poses the question: was he in peaceable possession of the yard waste? This inquiry is a feature of the section 39(1) defence with a claim of right.

[40] In addition, the trial judge sets out why Mr. Li was not justified in using force and then, in the alternative, finds that even if he was so entitled, the force used was excessive. At pages 11 and 12 of her reasons:

It certainly is not objectively reasonably for a spouse to use physical force to prevent the other spouse from throwing yard waste around the yard. Was it subjectively reasonable for Mr. Li to believe he could use force in the circumstances? It is important to note that Ms. Wang is a very petite woman. Mr. Li is much taller and stockier. Accepting Mr. Li’s evidence that Ms. Wang had destroyed his computers in the past, and that he had a basis for concern for his property, it was still not subjectively reasonable for him to believe he could use force against his wife in these circumstances. No damage was being done or threatened. Any mess could have been easily cleaned up. If Mr. Li was concerned about the yard waste, why did he remove his wife’s jacket and stomp on it? Why was he yelling and screaming at her? I conclude that Mr. Li was not entitled to use force against her to defend his yard waste. Indeed, in my view, the real purpose underlying his actions was his desire to continue the argument that had started at the front door. He was angry and became angrier when he heard his wife break a bottle. He wanted to exert control over her and acted on his desire by exerting physical control over her. Thus, Mr. Li is guilty of assault.

Further, for all the reasons expressed earlier in these reasons, I am satisfied beyond a reasonable doubt that Ms. Tomlinson’s description of Mr. Li shoving his wife back-and-forth over an extended period of time is an accurate description of what happened on the driveway. This, even if Mr. Li was legally entitled to defend his yard waste, the force he used was excessive.

[41] The standard of review for a matter of mixed fact and law is correctness. In R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575 (Ont. C.A.), the court stated the following at para. 36:

Thus, on appeal, as a matter of mixed fact and law, the Crown is required to demonstrate that the trial judge made a distinct legal error, or erred in his assessment of the evidence. A legal error, such as the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle is subject to a standard of correctness. Where the legal question cannot be separated from the facts, a trial judge's decision is subject to a more stringent standard; that is, the trial judge's interpretation of the evidence overall will not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[42] I am satisfied that the trial judge applied the proper legal test to Mr. Li’s claim of defence of property. Her findings of fact are supported by the totality of the evidence. I cannot conclude, as Mr. Li asserts, that the trial judge committed palpable and overriding error.

[43] For all of these reasons this ground of appeal fails.

ISSUE: COSTS

[44] In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 stated the following at para. 87:

Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily. Crown counsel is not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion. Rather, the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution. I fail to see how the provision of an expedient remedy in such cases, from a trial court that is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice.

[45] In Tiffin, supra, the court dealt with the costs issue at paras. 97-101 as follows:

However, "[b]ecause of their constitutional status, Charter rights have a higher claim to judicial protection than non-Charter rights and s. 24(1) entitles the victim of a Charter breach to an appropriate remedy": Ciarniello, supra, at para. 35. There is no question that in the correct circumstances, costs may be an appropriate remedy under s. 24(1). Even then, "such awards, at a minimum, [are restricted] to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution": see R. v. 974649 Ontario Inc. (2001), 2001 SCC 81, 159 C.C.C. (3d) 321 at para. 87 (S.C.C.).

Costs, however, will not be routinely ordered in favour of accused persons whose Charter rights have been violated. In my view, the jurisdiction to award costs against the Crown as a s. 24(1) remedy for a Charter breach in cases not involving Crown misconduct requires something that is "rare" or "unique" that "must at least result in something akin to an extreme hardship on the defendant." As a general rule, costs claimed by an accused, absent Crown misconduct, will not be an "appropriate and just" Charter remedy: see Ciarniello, supra, at para. 36; R. v. Hallstone Products Ltd., [2000] O.J. No. 1051 at para. 33 (S.C.J.).

The respondents rely on Ciarniello to say that their case is rare, or that it consists of unique circumstances that result in something akin to an extreme hardship on them. Respectfully, Ciarniello does not assist the respondents. While their case does involve a serious Charter breach, it does not involve the unusual set of circumstances that occurred in Ciarniello.

In Ciarniello the appellant was not the target of the police investigation nor was he charged with any offence. This court found a number of features in Ciarniello "that distinguished it from the usual situation where costs are not available absent Crown misconduct". All the unique features found distinguished between the situation of a bystander -- which the appellant was in that case -- and an accused person. Here, of course, the respondents were each accused of criminal offences.

Criminal proceedings in this case were brought in the usual course and in the public interest. There was nothing unusual about the criminal proceedings, including the respondents' successful Charter challenge. There was no misconduct, as the trial judge recognized, that was attributable to the Crown nor did it contribute to any misconduct. This is not a case that is "rare" or "unique", nor does it result in anything akin to an extreme hardship on the respondents.

[46] Mr. Li seeks the following compensation from the Crown; the Police and the Court:

Jail Time off work cost

$250 per day

4 days

1000.00

Transcripts and Photocopy

$1000.00

1000.00

Anger Management Program Cost

$275.00

275.00

Lawyer Counseling Cost for Changing Surety

$300.00 per hour

0.5 hours

150.00

Off work cost before June 15, 2012

$250.00 per day

20 days

5000.00

Off work cost after September 15, 2012

$275.00 per day

12 days

3300.00

Off work compensation for two surety

$100.00 per day

3 days

300.00

Victim Surcharge

$50.00

50.00

Symbolic payment to cover cost for living in surety home

220.00 per month

6 months

1320.00

Extra Gas Consuming Cost

$1.30 per Littre

200 Littre

260.00

PAR Program Cost

$275.00

275

Total

[47] Mr. Li has not established a basis to award costs in this case. First, the claim for costs against the trial judge is banned by judicial immunity. Secondly, there is nothing in the evidentiary record to establish prosecutorial misconduct.

[48] Mr. Li submits that the Crown acted improperly by not calling Mr. Li’s wife as part of his case. It is within the Crown’s discretion to determine which witnesses are necessary to prove a charge. On the evidentiary record before me there is nothing to indicate that this decision was made for an improper purpose or an oblique motive.

[49] With respect to the conduct of appeal counsel, Mr. Li points to two paragraphs (24 and 26) in the Crown’s Factum to demonstrate a breach of his constitutional rights. The impugned paragraphs read as follows:

Though not explicitly referenced in her reasons, Nelson J. applied the proper legal test: whether Mr. Li’s actions were justified under section 38(1) of the Criminal Code. That sections reads:

Everyone who is in peaceable possession of personal property, and

R. v. Li, 2013 ONSC 1673

Case Summary