SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-12-3000012-0000
DATE: 20130108

RE: R. v. YANG YANG WU

BEFORE: Justice Pardu

COUNSEL:
Susan Lee, for the Crown

Roger Rowe, for Yang Yang Wu

Paul Calarco, for Donna Pledge, former solicitor for Yang Yang Wu

HEARD: January 7, 2013

ENDORSEMENT

[1] The accused applies for an extension of time to bring an application to quash his committal for trial of January 19, 2012. No written application was brought for this relief, however Crown and Defence were content to proceed on the basis of the Application Record claiming that the committal should be quashed, or in the alternative that a new preliminary inquiry should be ordered.

[2] The Criminal Proceedings Rules for the Superior Court of Justice provide in Rule 43.04(1) that:

An applicant shall give notice of application in Form 1 and in accordance with rule 43.03 within 30 days after the day on which the order which is the subject of the application was made or given.

[3] Section 43.04(3) provides that a judge may extend the time prescribed by this rule.

[4] Here the application to quash committal was not filed until November 19, 2012, some 10 months after the committal order.

[5] The accused, and two others, Yi An and Jian Z. Chen, were charged with aggravated assault of Xuan Chen. The Crown alleged that Wu stabbed the complainant in the course of an altercation on February 6, 2011, and that his co-accused were parties to the assault. At the preliminary inquiry the complainant testified that Wu, in response to questions by the Crown, stabbed him.

[6] The Crown’s case also includes evidence that DNA compatible with the complainant’s DNA was found in blood on Wu’s jacket.

[7] Wu says that the committal for trial should be quashed because one counsel represented all three accused at the preliminary inquiry, and that there was necessarily a conflict of interest as each would have an interest in deflecting responsibility from himself to a co-accused. The Crown has now stayed the charges against the co-accused.

[8] Two trial dates have already been set in this matter but for unrelated reasons the matter has not proceeded.

[9] Counsel now acting for the accused was not counsel at the preliminary inquiry. He first had contact with the accused in mid-February 2012, and was not retained for the trial until March 19, 2012. He ordered the transcripts after a judicial pre-trial on May 1, 2012 and did not receive them until August 17, 2012. He says he brought the application when he was able to do so.

[10] The accused states that on January 17, 2012 his then counsel advised him of a potential conflict of interest and recommended that he obtain independent legal advice and retain other counsel. Wu says he asked his then counsel to do the preliminary inquiry as he had already paid her a retainer.

[11] He alleges that she acted in a fashion detrimental to his interests by conceding that he had stabbed the complainant. I do not interpret her submissions at the preliminary inquiry in that fashion. She did not dispute that there was direct evidence from the complainant that Wu stabbed him. There was such evidence. This was sufficient to justify committal.

[12] No one raised the issue of a potential conflict of interest before the preliminary inquiry judge. Presumably the accused would have been aware of his discussions with his former counsel about the potential for a conflict of interest when he contacted new counsel in February 2012.

[13] Given the time that has passed, I am not satisfied that the interests of justice require an extension of time.

[14] Committal was inevitable given that the complainant identified the accused as the person who stabbed him. To quash the committal now, when the issue was never raised before the preliminary inquiry judge, 10 months have passed since committal, and where the evidence made committal virtually inevitable, where the accused acquiesced to proceeding with his former counsel, and where there is no basis to find that his right to make full answer and defence at trial would be impaired in any fashion, would result in significant delay for no useful purpose. This application is entirely different from an appeal from a conviction at trial where counsel for an accused had a conflict of interest.

[15] It would be difficult to conclude that failure by the preliminary inquiry judge to address an issue never raised before him amounted to jurisdictional error.

[16] Application for extension of time to apply to quash committal dismissed.

[17] I permitted counsel for the accused’s former lawyer to make submissions on this motion, without coming to any final conclusions as to whether she had standing to oppose this application for an extension of time. I am not satisfied that there is any basis to accord her standing on this motion for an extension of time by the accused.

PARDU J.

Date: January 8, 2013