R. v. Wong, 2015 ONSC 3106

NEWMARKET COURT FILE NO.: 01-05535G

DATE: 20150515

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Respondent

AND:

Shu Wong, Applicant

BEFORE: THE HON. MADAM JUSTICE E.A. QUINLAN

COUNSEL: P. Tait, Counsel for the Crown

M. Crystal, Counsel for the Applicant

HEARD: Application in writing

ENDORSEMENT

The Application

[1] On July 18, 2002, the applicant was convicted of first degree murder in relation to the killing of his wife, who was murdered on February 11, 1999. He was sentenced to life imprisonment, without eligibility for parole for a minimum of twenty-five years. Having served more than fifteen years of that sentence, he is before the Court on an application for judicial review seeking a reduction in the period of his parole ineligibility.

[2] The judicial review regime is set out in ss. 745.6 to 745.64 of the Criminal Code. This regime is often referred to as a “faint hope” application. It was repealed by Bill S-6, which received Royal Assent on March 23, 2011, and came into force on December 2, 2011, however, only prospectively. Persons who are convicted of first degree murder committed on or after the coming into force of the Bill are no longer entitled to apply for a reduction in the number of years of their sentence to be served without eligibility for parole. Both counsel agree that the repeal does not have an impact on Mr. Wong’s application.

[3] On October 31, 2014, I was designated to preside over Mr. Wong’s application pursuant to s.745.61 of the Criminal Code.

The Preliminary Screening Test

[4] A faint hope application is ultimately determined by a jury. Before a jury is empanelled to hear the application, it must be screened by a judge designated by the Chief Justice of the province in which the application is commenced. The screening process is set out in s. 745.61 of the Criminal Code. It requires the screening judge to vet the application to ensure that it has a substantial likelihood of success. If it does not, a jury will not be empanelled to consider it.

[5] Subsections 745.61(1) and (2) of the Criminal Code establish the screening process:

Judicial screening

745.61 (1) On receipt of an application under subsection 745.6(1), the appropriate Chief Justice shall determine, or shall designate a judge of the superior court of criminal jurisdiction to determine, on the basis of the following written material, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed:

(a) the application;

(b) any report provided by the Correctional Service of Canada or other correctional authorities; and

(c) any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General.

Criteria

(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.

[6] The “criteria” referenced in ss. (2) are as follows:

(a) the character of the applicant;

(b) the applicant’s conduct while serving the sentence;

(c) the nature of the offence for which the applicant was convicted;

(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and

(e) any other matters that the judge considers relevant in the circumstances.

The Onus and Burden of Proof

[7] The applicant has the onus of demonstrating that it is more likely than not that the application has a substantial likelihood of success. As noted in R. v. Ali, 2013 ONSC 5551 at para. 7, “There is no justification for defining ‘substantial likelihood’ differently in faint hope applications as opposed to bail applications.” That test has been described as a slightly enhanced balance of probabilities standard, such that the odds are in favour of success. As noted in Ali, supra, at para. 8, “the section ultimately aims at ensuring that the application has genuine merit to it”.

Evidentiary Record

[8] Following consultation with counsel by way of a telephone conference call, it was agreed that the screening would proceed on the basis of the limited written record, as contemplated by s. 745.61(1) of the Criminal Code, that there would be no cross-examination of the author of the Parole Eligibility Report, and that the Crown would submit written evidence of its own: a videotaped statement of Mr. Wong’s son, Kenneth Wong, and certain reports of Correctional Service Canada. I have no victim impact statements from the time of the trial.

[9] In this case, I have reviewed the following:

(a) The Application Record, including the affidavit of the applicant, sworn June 17, 2014, together with his autobiography and letter;

(b) Parole Eligibility Summary Report for the purpose of Judicial Review (PER) dated February 19, 2015, prepared by Susan Hazel, a parole officer with Correctional Service Canada;

(c) Certain records of Correctional Service Canada in connection with Mr. Wong’s incarceration, including:

(i) evaluations of Mr. Wong’s participation in violence programs;

(ii) Mr. Wong’s Psychological/Psychiatric Assessment Reports;

(iii) Mr. Wong’s Final Program Performance Reports; and

(iv) evaluation of Mr. Wong’s behaviour while incarcerated, including academic achievements, employment, and his community connections; and

(d) A transcript of the videotaped statement of Kenneth Wong.

Review of the Section 745.63(1) Criteria

[10] In determining whether the applicant has established a substantial likelihood of success, the court is directed to consider those factors enumerated in s. 745.63(1) of the Code. I begin with the nature of the offence.

The Nature of the Offence

[11] Mr. Wong and his wife owned and operated a number of restaurants. Mr. Wong began gambling and incurred a significant amount of debt.

[12] In order to pay the debt, Mr. Wong hired four co-accused, with whom he was acquainted through off-track betting, to kill his wife so that he could secure monies from two insurance policies on her life. Discussions took place over several months. On February 11, 1999, Mrs. Wong arrived home from her English class and from picking up groceries. She was killed in the garage, stabbed in the neck. A cousin that was residing in the Wongs’ home discovered Mrs. Wong, face down on the garage floor. Police were contacted. Police investigation uncovered a series of phone calls between Mr. Wong and his co-accused, in addition to the insurance policies and substantial debts.

[13] A month after the murder, Mr. Wong left for Hong Kong. Canada requested that Hong Kong effect the arrest of Mr. Wong. He was arrested in August 1999. He was subsequently extradited in October 2000.

The Character of the Applicant

[14] Mr. Wong is 62 years old. He was born in Canton, China and spent most of his youth in Macau, China. He was raised in a stable family environment, devoid of abuse.

[15] Mr. Wong performed well academically. He began working at the age of 15 or 16, when his family moved to Hong Kong. He married his wife in 1975. Their son was born in 1976. He immigrated to Canada in 1986 with his wife and son. He worked primarily in the restaurant business and owned a share in three restaurants.

[16] At the age of 30, Mr. Wong was fined for illegal gaming in a house. He has no criminal record apart from the index offence.

[17] Mr. Wong and his wife both worked long hours in the restaurant business. This caused significant stress between them. Mr. Wong turned to gambling to relieve his stress. This resulted in more stress through the accumulation of gambling debts.

[18] Mr. Wong appears to have been obsessed with prestige: this led him to become involved in the gambling culture. As well, he had an unhealthy relationship with his wife: it was his view that she should always listen to and respect him, and that he, as the male, was entitled to make all decisions concerning the family. He dealt with stress by spending more time away from his family. He lacked any insight into the need to ask for help from family, professionals, or pro-social friends, as opposed to negative acquaintances and situations.

[19] Although Mr. Wong initially denied any participation in the murder of his wife, in 2010 he admitted his involvement in the offence to his parole officer. He had formally abandoned his appeal of conviction three years earlier.

[20] Mr. Wong has a son, daughter-in-law and two granddaughters. He maintains an occasional relationship with his son. He has contributed funds to his granddaughters’ education plans while he has been working in prison.

[21] During the interviews for the PER, Mr. Wong accepted full responsibility for the offence. In 2013, in the course of a psychological risk assessment, Mr. Wong admitted to organizing the murder of his wife and accepted full responsibility for it. He stated he deeply regretted his actions. He did not meet the criterion for diagnosis as a psychopath. Scores on actuarial testing indicated that he is a low risk to reoffend in a violent manner.

[22] Mr. Wong advised that he hopes to work in a restaurant upon his release from prison and continue to attend church and volunteer.

The Applicant’s Conduct in Custody

[23] Mr. Wong went into federal custody in August 2002. After several months at the Millhaven Assessment Unit, he was transferred to maximum security at the Kingston Penitentiary, where he was incarcerated for two years. After three years in medium security at Joyceville Institution, Mr. Wong was transferred to Fenbrook Institution, a medium secure facility, where he was incarcerated for six years. Since November 2013, Mr. Wong has been at Beaver Creek Institution, in minimum security.

[24] Mr. Wong was referred by the Psychology Department at Joyceville Institution for a risk assessment. The first assessment was conducted in 2007. At that time, Mr. Wong continued to deny culpability for the offence and did not specifically express regret over his wife’s death. It was determined that in order to moderate his risk of recidivism, Mr. Wong would have to address his gambling addiction.

[25] In 2010, Mr. Wong was referred for psychological counselling to address his gambling addiction. In the course of the program, Mr. Wong was able to identify issues in his culture that led him to rationalize his behaviour. It was determined that Mr. Wong did not appear to suffer from a gambling addiction, but rather that he was obsessed with the image of prestige that the casino lifestyle provided to wealthy guests. This was found to be at the root of Mr. Wong’s financial crises and consequent involvement in the offence. After more than ten years in prison, Mr. Wong appeared as a humble, unassuming individual with no apparent treatment or counselling goals to address.

[26] In 2011, Mr. Wong successfully completed a program of treatment known as the National Moderate Intensity Family Violence Prevention Program. He came to be aware of his dysfunctional thinking regarding gender roles and male privilege. Meaningful changes in the treatment program, his need for control and his insight into anger management were noted. Mr. Wong recognized that a lack of communication, poor conflict management, and a lack of empathy for his wife were risk factors for him in the past. Mr. Wong consistently demonstrated a willingness to learn and was always open to advice and suggestions. He provided helpful feedback to other group members that reflected his understanding of the skills and goals presented in that program.

[27] Psychometric testing after the completion of the family violence program indicated that Mr. Wong had made significant gains in the areas of healthy interpersonal relationships and anger management. Mr. Wong admitted to viewing his wife as second to himself and ultimately expendable in order to meet his financial needs. He also recognized that he had surrounded himself with persons who held similar views, allowing him to rationalize his behaviour toward his wife.

[28] Mr. Wong participated well in the National Family Violence Maintenance Program which he completed in 2012. He developed a detailed, viable relapse prevention plan.

[29] In the course of his incarceration, Mr. Wong has obtained his Ontario Secondary School Diploma, with marks ranging from 84 to 97 percent. He completed a program in Alternatives to Violence. He was involved in tutor training and became a full-time English as a Second Language tutor. He is described by his teacher and supervisor, with whom he has worked for more than six years, as an exemplary, highly motivated, and excellent role model. Information received from staff regarding his behaviour indicates that he always maintains a respectful and positive attitude.

[30] Since February 2014, Mr. Wong has worked as the library cleaner with consistently positive work reports.

[31] Mr. Wong has not incurred any institutional charges or incidents over the course of his entire incarceration. There has not been any requirement for special administrative interventions and he has never required administrative segregation. In 2003, he refused to participate with other offenders and disobey orders; in 2013 he refused to participate in a strike.

[32] Mr. Wong is engaged in his correctional plan. There are no concerns regarding affiliations with security threat groups or involvement in the subculture of the institution except an observation report in 2010 that Mr. Wong was associating with a known gang member.

[33] Mr. Wong’s institutional behaviour has been described as “exemplary”. He made significant gains through programming available to him at the institutions. He has been described as a model inmate.

Information Provided by Victims

[34] I have no victim impact statements from the time of trial. Kenneth Wong, Mr. Wong’s son, was recently contacted by the police to provide information about the impact of the crime on him and his position regarding the faint hope application being brought by his father.

[35] Kenneth Wong has taken a “neutral” position: on the one hand, it is his view that his father should be accountable for his actions but, on the other hand, his father helped raise him. Kenneth is willing to provide occasional financial support but not emotional or spiritual support. He is not prepared to offer his father a home or to take care of him.

[36] Kenneth advised that he visits his father approximately once a year and writes to him occasionally. He considers his father as more of a relative than a father. He does not wish his children to be involved in any telephone calls with his father.

[37] Kenneth told the police that he has not clearly heard from his father that there has been an acceptance of responsibility, nor has there been a specific admission of what he has done. Kenneth stated that two or three years ago, his father started to show some remorse and some regret.

[38] If Mr. Wong’s application is successful, Kenneth will not make an attempt to have a relationship with him.

[39] Insofar as the impact of the crime on Kenneth, he told the police that he still feels uncomfortable if he runs into people his family used to know. He worries that his father’s co-accused will come back and look for him. He worries about the safety of his family and sometimes wonders if it was a bad idea to return to Toronto. Kenneth does not feel safe in a room with his father unless guards are there. He finds it a struggle to respond to questions about his parents from his children and other people.

[40] The deceased’s family are in China, as is Kenneth’s cousin. They have not provided any information as to the impact of the murder on them.

Application of the Criteria

[41] The murder of Lai Har (Maria) Wong was a horrific crime motivated by greed. Mr. Wong chose to lead a lifestyle of prestige over a life with his wife, the mother of his son. It was a calculated and senseless act, without regard to the impact that the murder would have on his son.

[42] Mr. Wong fled Canada after the murder. He had to be extradited. He initially maintained his innocence. However, since his incarceration, he has been an exemplary prisoner. He now acknowledges his involvement in his wife’s murder and recognizes the circumstances that led him to this horrific crime.

[43] Mr. Wong has successfully completed the Family Violence Prevention Program and a maintenance program in family violence. He has done exceptionally well during his incarceration. I am satisfied that he appreciates the risks posed by his dysfunctional thinking and that he has taken steps to learn how to manage those risks.

[44] Mr. Wong has done all he can to better himself in custody. The reports of his behaviour are glowing. He has, since incarcerated, become a Christian and developed strong ties with the Christian community. He has set a good example in the small Chinese community in the institutions and has assumed a fatherly role to the young inmates.

[45] Mr. Wong has maintained a relationship, albeit not a close one, with his son. He contributes to his granddaughters’ educational funds from his institutional earnings.

[46] Mr. Wong has taken advantage of educational, vocational and personal development programming available to him. His work record is consistent and positive. He has some limited support from his son. He poses little risk to public safety.

[47] Mr. Wong has no criminal record apart from the index offence. He has no other violent criminal antecedents. I am satisfied that Mr. Wong is genuinely remorseful for the pain he has caused.

Conclusion

[48] On the record before me, I am satisfied that Mr. Wong has taken steps to address the risk factors and dysfunctional thinking that led him to murder his wife.

[49] On balance, having considered the criteria set out in s. 745.63(1), I am satisfied that Mr. Wong’s faint hope application has a substantial likelihood of success.

[50] Accordingly, the application is allowed and a jury shall be empanelled to consider the application. Counsel are directed to arrange a telephone conference call with the Regional Senior Justice through the Trial Coordinator at Newmarket, with respect to the scheduling of a hearing in this matter.

QUINLAN J.

Date: May 15, 2015