R. v. Lin, 2015 ONSC 3546

CITATION: R. v. Lin, 2015 ONSC 3546

COURT FILE NO.: 144/13

DATE: 20150604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

RONG LIN

Appellant

Megan Petrie, for the Crown

Tung-Chieh Wu, for the Appellant

HEARD: May 15, 2015

Trotter j.

REASONS FOR JUDGMENT

1. Introduction

[1] For decades, law students at Downtown Legal Services (“DLS”), a legal aid clinic associated with the Faculty of Law, University of Toronto, have represented members of the community who are unable to afford a lawyer. Under the close supervision of experienced counsel, DLS students ably represent people charged with summary conviction offences in the Toronto courts. This case is a good example.

[2] Mr. Lin was charged with assaulting his wife. He was represented by a DLS student. Although the case was serious, it was straightforward from a legal perspective. It was alleged that Mr. Lin: (1) choked the victim; (2) poked her in the eye; and (3) restrained her while she attempted to call the police. After a trial before Madam Justice McArthur of the Ontario Court of Justice, Mr. Lin was found guilty of assault, but solely on the basis of the last and least serious allegation. Justice McArthur imposed a conditional discharge with one year of probation.

[3] Mr. Lin appeals the finding of guilt and sentence. He advances multiple grounds of appeal, the principle one being that he received ineffective representation. He also alleges that the trial judge erred in various ways. For the reasons that follow, the appeal is dismissed.

2. Analysis

(a) Fresh Evidence and Ineffective Assistance of “Counsel”

(i) General Principles

[4] Mr. Lin argues that he received ineffective representation from the DLS student who represented him. In support of this argument, he applies to adduce fresh evidence concerning how his file was handled by DLS. He also relies on the trial transcript. Some of Mr. Lin’s complaints focus both on the effectiveness of the representation he received and the alleged shortcomings of the trial judge. Instead of dealing with them separately, I deal with these double-edged complaints together. As I have already noted, while he was not acquitted, Mr. Lin had reasonable success at trial. This result was due to the effective representation Mr. Lin received.

[5] I am prepared to admit the fresh evidence as it relates to the quality of the representation received by Mr. Lin. As explained below, I refuse to admit the fresh evidence to the extent that it bears on a substantive issue at trial (i.e., the strip search).

[6] When a person enlists the services of a lawyer, s. 11(d) of the Charter guarantees the right to the effective assistance of counsel: see R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.) and B. (L.C.) (1996), 1996 CanLII 937 (ON CA), 104 C.C.C. (3d) 353 (Ont. C.A.). An accused person does not enjoy the same constitutional guarantees when he or she is represented by an agent. As the Court of Appeal held in R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 138 C.C.C. (3d) 225 (Ont. C.A.) [Romanowicz], at pp. 237-238:

By choosing to proceed without counsel, an accused elects to forego the right to the effective assistance of counsel. An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel.

If the accused chooses self-representation, he or she cannot be heard to complain that the conduct of the trial did rise to the level of a competent counsel. We see no reason why the same conclusion would not follow when an accused chooses to be represented by an agent who is not a lawyer…

In holding that an accused who chooses to be represented by an agent and not a lawyer has no constitutional right to competent representation, we do not suggest that the accused's right to a fair trial is diminished. That right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right: R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 at p. 347. [emphasis added]

See also R. v. Wolkins (2005), 2005 NSCA 2, 192 C.C.C. (3d) 378 (N.S.C.A.). In these circumstances, the conduct of a non-lawyer agent must be considered in light of whether the conviction constituted a miscarriage of justice, having regard to all of the circumstances, including the manner in which the trial judge conducted the trial.

(ii) The Failure of the Trial Judge to Make an Inquiry

[7] Related to his complaints about representation, Mr. Lin argues that the trial judge ought to have made an inquiry to determine whether Mr. Lin made an informed choice to forego representation by a lawyer. As the court held in Romanowicz, a trial judge should conduct some type of inquiry (p. 241):

We think that a trial judge faced with an accused who has chosen to be represented by an agent should ensure that the choice is an informed one. The trial judge should be satisfied that the accused is aware that the agent is not a lawyer and that the accused will not have recourse to various remedies which might be available to him if the agent were a lawyer and performed inadequately.

A failure to conduct such an inquiry is not fatal. The question is whether any shortcoming in the performance of the trial judge or the agent resulted in an unfair trial: R. v. Wolkins, supra, at p. 406 and R. v. Bilinski, 2013 ONSC 2824, [2013] O.J. No. 2984 (S.C.J.) at para. 135.

[8] In the circumstances of this case, it would have been preferable for the trial judge to make such an inquiry. However, no unfairness resulted. I am satisfied that Mr. Lin did make an informed decision to be represented by an agent. Included in the fresh evidence materials is a document entitled “Direction”, executed by Mr. Lin just two weeks before the trial. This is a form generated by DLS to obtain acknowledgements and instructions from the people they represent. Included in this document are the following paragraphs:

That I have been advised that my agent….is a law student at Downtown Legal Services and is not a lawyer. I understand that I have the right to adjourn this matter in order to retain private counsel through legal aid or otherwise to fully prepare for trial;

That, should I be found guilty of the charge, I will not be able to appeal on the basis that I was represented by a student;

It is the opinion of Downtown Legal Services that I may be found guilty of the offence.

[9] As part of the fresh evidence materials, Mr. Lin swore an affidavit, setting out his concerns with the quality of his representation. In this affidavit, he said that he felt pressured into signing the Direction. After reviewing his affidavit, the affidavits of the DLS representative and his supervising lawyer, as well as the cross-examinations of all of them, I reject this contention. Mr. Lin was a difficult and argumentative witness who often provided unresponsive answers on key issues, including this one. I find that there was no duress brought to bear on Mr. Lin to sign the document. It was properly explained to him in Mandarin. Mr. Lin was a police officer in China before he came to Canada. In his evidence at trial, and during the cross-examination on his affidavit, he was quite assertive. The allegation of duress is unpersuasive.

[10] Moreover, and as I have already noted, Mr. Lin received a fair trial. The DLS student provided very effective representation. He made timely objections (sometimes at the same time that the trial judge intervened when she had concerns). He conducted very thorough cross-examinations of the two Crown witnesses. He led Mr. Lin through his examination-in-chief in a very orderly and logical fashion. His closing submissions were thorough and effective. Moreover, an examination of the DLS file that was produced as part of the fresh evidence application showed a high level of preparation on the part of the student, with appropriate supervision by DLS counsel.

[11] The trial judge ensured that Mr. Lin received a fair trial. She intervened on numerous occasions during the case for the prosecution in order to ensure that the rules of evidence were observed. She pressed the Crown (not Ms. Petrie) to justify the admissibility of certain pieces of evidence (such as the 911 calls, discussed below). She prevented the Crown from calling evidence of a prior event as “narrative” evidence. The trial was a model of fairness.

(iii) The Strip Search Issue

[12] Mr. Lin contends that the inadequacy of his representation is illustrated by the failure of the DLS student to pursue a claim that he was improperly strip-searched. In his affidavit, Mr. Lin claimed that, at one point, he was completely naked and in a public place where people could see him. In his cross-examination on his fresh evidence affidavit, Mr. Lin agreed that he did not mention being strip-searched during his many meetings with the DLS student. He said that, because he was new to Canada, he did not know that the strip search was illegal. Moreover, he claimed that he was too embarrassed to tell the DLS student.

[13] During his evidence at trial, Mr. Lin explained his dealings with the police in great deal, including the time he was at the station. He made no mention of the strip search, let alone asserting that it was conducted improperly. Moreover, the DLS student interviewed Mr. Lin numerous times leading up to trial. Mr. Lin never mentioned any of these details.

[14] The DLS lawyer who supervised Mr. Lin’s file also provided an affidavit. She indicated that it was only through reviewing the disclosure that DLS learned that he had been strip-searched. The supervising lawyer said the following in her affidavit:

Our understanding of the base law is that a strip search alone will not justify a stay of proceedings where the accused had been held for a bail hearing. While a case-by-case decision has to be made when an accused is strip-searched even when held for a bail hearing there was no indication that Mr. Lin was strip-searched as a matter of police policy. As Mr. Lin had been held for a bail hearing, we determined that there was no merit to bringing a Charter application in the circumstances.

Had Mr. Lin informed us that the strip search had been conducted in a public place, as alleged in his affidavit, we likely would have brought a Charter application. However, given the minute detail that he provided about the events of his arrest and detention, we could have no suspicion that the strip search had been conducted in any way that was improper. [emphasis added]

[15] I accept that Mr. Lin was strip-searched at the police station. This is clear from the disclosure materials. A strip search would have been reasonable in the circumstances, given that Mr. Lin was being held for a bail hearing and would have been required to interact with other detainees. I am dubious of Mr. Lin’s account concerning the manner of his strip search, particularly since he failed to mention this to the DLS lawyer and student and because he made no mention of it at trial. Moreover, the response of DLS was a reasonable exercise of professional judgment in all of the circumstances.

(iv) Conclusion

[16] When Mr. Lin was not completely successful at his trial, he turned around and blamed the law student who represented him. As I have already said, overall, Mr. Lin received excellent representation. This was supplemented by the manner in which the trial judge conducted the trial. While the fresh evidence is admitted on the effective representation issue, it is not admitted on the strip search issue. Accordingly, this ground is dismissed.

(b) The Step-Daughter’s Evidence

[17] When Mr. Lin’s step-daughter testified at trial, it was discovered that there had been a breach of the trial judge’s order that witnesses not communicate with each other. Mr. Lin argues that the DLS student ought to have requested that the witness be prohibited from testifying. He also blames the trial judge for not doing so on her own initiative.

[18] No miscarriage of justice was occasioned in the circumstances. The trial judge did not err in the manner in which she dealt with this evidence. It was a factor that she took into account in assessing the evidence of this witness. As the trial judge observed, despite discussing the matter with her mother, Mr. Lin’s step-daughter was not influenced or swayed at all.

(c) The 911 Call

[19] Mr. Lin argues that the trial judge erred in admitting 911 call made by the victim in this case. He also argues that the DLS student should have objected to the admission of this evidence. First of all, there were two 911 calls – the first one was a recording of a woman who was screaming, while the second was the victim describing what had happened to her. Secondly, the DLS student did object to the admissibility of this evidence.

[20] The trial judge conducted a voir dire before admitting this evidence. She ruled that she would not use the evidence for improper hearsay purposes. In the end, the trial judge found that the second 911 call was inconsistent with the victim’s trial testimony and that it undermined her credibility. Consequently, the use made of this evidence benefitted Mr. Lin. This ground of appeal fails.

(d) The “Bear Hug” and the Timing Issue

[21] Mr. Lin argues that the trial judge erred in finding that he had placed his wife in a “bear hug” while trying to prevent her from calling the police. He asserts that no such expression exists in the Mandarin language, the mother tongue of all witness at trial.

[22] The “bear hug” expression arose during the cross-examination of the step-daughter by the DLS student. It was an apt expression that seemed to accurately capture what both she and her mother described. The trial judge found it to be a helpful descriptor and was content to use it in her reasons. I can see no error.

[23] Mr. Lin also argues that the trial judge misapprehended the step-daughter’s evidence on the issue of how long the event transpired. I need not detail the evidence on this issue because it was immaterial to the trial judge’s ultimate conclusion that Mr. Lin’s conduct amounted to an assault. Even if the trial judge did err, it did not impact on the verdict: R. v. Loher (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.).

(e) The Elements of Assault and the De Minimis Doctrine

[24] Mr. Lin argues that the experienced and learned trial judge erred in her understanding of the elements of common assault in s. 265 of the Criminal Code. He asserts that the facts underlying the finding of guilt (i.e., the “bear hug” used in attempting to thwart his wife’s 911 call) did not constitute an assault because the application of force was not “wrongful” and because his conduct was “reflexive.”

[25] There is no merit to this submission. In the context of this case, nothing more was required than the intentional application of force without the victim’s consent: R. v. Palombi (2007), 2007 ONCA 486, 222 C.C.C. (3d) 528 (Ont. C.A.), at pp. 539-540. Moreover, this was not a case of accidental touching, nor was it the product of a reflex, as contemplated in R. v. Wolfe (1974), 1974 CanLII 1643 (ON CA), 20 C.C.C. (2d) 382 (Ont. C.A.). This was purposeful conduct in the context of a domestic dispute.

[26] Mr. Lin argues that the doctrine of de minimis non curat lex was applicable in this case. This position was not advanced by the DLS student, and for good reason – before the trial judge rendered her decision, Mr. Lin faced the far more serious allegations detailed in paragraph 2, above. Based on the trial judge’s findings, the doctrine is still inapplicable. Given the offence features of this assault, involving a domestic dispute in the presence of Mr. Lin’s young step-daughter, it would be inappropriate to apply this doctrine. In rejecting this argument in R. v. Carson (2004), 2004 CanLII 21365 (ON CA), 185 C.C.C. (3d) 541 (Ont. C.A.), the Court said: “The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated.” See also R. v. Gosselin (2012), 2012 QCCA 1874, 98 C.R. (6th) 211 (Que. C.A.) and, generally, Don Stuart, Canadian Criminal Law – A Treatise, 7th ed. (Toronto: Scarborough, 2014), at pp.656-661.

(f) The Sentence Appeal

[27] The trial judge imposed a conditional discharge. This was the sentence that the Crown submitted was appropriate. On Mr. Lin’s behalf, the DLS student submitted that an absolute discharge was appropriate. He made helpful submissions on this issue. The DLS student submitted: “The immigration consequences of this finding of guilty will delay obtaining Canadian citizenship.” The trial judge intervened to clarify the difference between the two sanctions, if any, on Mr. Lin’s immigration status. The DLS student was unaware and told the trial judge so. The Crown was also unable to provide assistance on this matter.

[28] Mr. Lin argues that the failure to provide the trial judge with an answer demonstrates ineffective representation. I disagree. The DLS student was correct to advise the trial judge that a conditional discharge would have the effect of delaying Mr. Lin’s eligibility for Canadian citizenship: see Citizenship Act, R.S.C. 1985, c. C-29. Section 21 of that Act provides that time spent on probation may not be counted towards the minimum period of residence required for Citizenship. Section 22 creates a three-year delay for applicants who have been convicted of an indictable offence. This section was inapplicable to Mr. Lin’s situation, given that he did not face an indictable offence and he was not convicted. Instead, he was found guilty of a summary conviction offence.

[29] The situation in this case is markedly different from the line of cases where sentences of certain lengths may have serious consequences under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36. See R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. Here, the effect of a conditional discharge ended up delaying the timing of Mr. Lin’s application for citizenship. In any event, this issue is unimportant in the broader scheme of things. Given that the assault was committed in the context of a domestic relationship, and in view of Mr. Lin’s defiant lack of remorse, the sentence was entirely fit and in accordance with the governing principles for this type of case.

4. Conclusion

[30] The appeal against the finding of guilt and against the conditional discharge is dismissed.

Trotter J.

Released: June 4, 2015