Court File and Parties

Court File No.: CR-14-06-AP Date: 2017 Jan 17 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Ming Ning Karl Zhao, Appellant

Counsel: G. Laarhuis, for the Crown L. Beechener and E. Tache-Green, for the Appellant

Heard at Kingston: December 1 and 15, 2016, Appellant Reply in Writing

Before: Tranmer J.

Decision on Summary Conviction Appeal

[1] Mr. Zhao appeals from his convictions by Mr. Justice Fournier of the Ontario Court of Justice on October 11, 2013, for sexual assault between August 1, 2009 and October 1, 2010 against Ms. C., and for unlawful confinement of her on September 21, 2010 and for assault against her on September 21, 2010.

[2] The trial proceeded for 13 days commencing in August of 2012 and ending in August of 2013.

The Issues

[3] The Appellant advances three grounds of appeal against conviction, namely,

1. The trial judge's conduct gave rise to a reasonable apprehension of bias;
2. The trial judge misapprehended evidence; and
3. The conviction for unlawful confinement was unreasonable and cannot be supported by the evidence.

Issue #1 – Reasonable Apprehension of Bias

Position of the Appellant

[4] The Appellant filed a compendium containing excerpts from the trial proceedings. The Appellant submits that the contents of first 11 Tabs demonstrate conduct on the part of the trial judge that meets the test in law for reasonable apprehension of bias. The examples include stating that the accused was not to be told why his counsel was late for the start of the trial, criticism of defence counsel for being late or not appearing and referencing Law Society discipline, holding in chambers meetings with counsel in the absence of the accused, summarily ordering that the accused's bag be searched in court, and suggesting that the accused appeared to be closely clinging to the bag and thus, raising a minor security issue.

[5] The examples further include admonishing defence that they were “making a mountain out of next to nothing,” and that it's “not rocket science”, “can we get on with the real issue here? … or are we going to play tiddlywinks all morning,” and that they are being “really picky over inconsequential issues”, and asking counsel not to confuse the judge with unnecessary detail, “I'm bored. Keep me awake please”, commenting that he has 10 or 15 years to live and doesn't want to spend it all in this trial, commenting that there appears to be no effort on the part of the defence to move the matter along, advising counsel that he is used to working a lot faster than they are and that he's done much more complex cases in a lot less time. Further examples include the judge advising defence that he is not impressed with their delaying tactics, using sarcasm in criticizing the defence, “I mean to have you sweating”, commenting to defence “try logic 101.”

[6] In regard to their cross-examination, the judge criticized defence counsel for repetitive questioning “I don't need to be told 100 times”. Further sarcasm is used in describing the slow pace by defence, “like sandpaper… I find this rather slow and frustrating”, “it doesn't need to be this sluggish” in reference to the defence cross-examination of the complainant, “why do you have to repeat everything… Is there an echo in here or is there someone that you perceive is so slow that you have to repeat everything two or three times”, “it's a nasty habit, you must be talking to some people who really don't listen to you”. Further examples include the judge telling defence counsel that they are “baited into collateral issues like a pickerel”.

[7] The Appellant submits that further examples of the trial judge’s bias again him occurs when the judge asks him in regard to interpretation issues arising on Day 2, “are you something less than an intelligent man … Mr. Zhao you are playing around in circles here … I’m beginning to think you’re playing games with me.”

[8] The Appellant’s counsel assert a further example of bias is seen when the trial judge rejects the accused's desire to fire his lawyers at the time of sentencing because they would not meet with him in advance of the sentencing hearing. Despite the trial judge’s previous criticism of defence counsel, he characterizes the accused's request as, “I'm not satisfied that your request is genuine. It appears to be an exercise in obfuscation, your interpreter can translate that for you, and look it up in the dictionary… I think it's a ploy and I'm not going to stand for it”.

[9] The Appellant contrasts this to what he calls favourable treatment by the trial judge with respect to the complainant, for example, when he uses her unwillingness to “agree” with defence counsel’s suggestions to her, as bolstering her credibility. At the end of a day during which the complainant testifies, the trial judge says,

The Court: Now it’s been a pretty intensive day and I think I’m going to suggest we break right now for today take it up from here tomorrow. It’s been a hard day on a lot of people including our witness.

Mr. Laarhuis: I – I just got five – 10 minutes left.

The Court: Yes, so let’s pack it in now. I think that she’s reached her limit today and she’s been very good and very strong, but the human spirit can only take so much. So I think we reached her limit and close to ours, so let’s pack it in and call it a day. We back here tomorrow at 10 o’clock tomorrow morning. Thank you.

[10] The Appellant's counsel do not assert ineffective assistance of defence counsel as a ground of appeal. However, they assert that the accused was underrepresented in the eyes of the trial judge. They highlight in their submissions that defence counsel did not appear in court as required, were late for court, were not well prepared, made false assertions of nondisclosure by the Crown, and in the course of the trial, having had the transcript of the accused’s police statement for some time and having conceded its voluntariness, claimed that the translation was inaccurate. In regard to this latter point, Appellant's counsel submits that this indicates an incredible underrepresentation on the part of defence counsel. The trial judge states in his Reasons that during the trial, Mr. Zhao’s statement, pages 155-170 inclusively, were “annotated” with changes acceptable to counsel on both sides, “to reflect a more accurate translation of what was being conveyed.”

[11] The Appellant further points out that the trial judge treated the accused’s assertion that the trial interpretation was inaccurate differently to that same assertion by the complainant.

[12] The Appellant submits that the trial judge's approach to the accused’s rights was high-handed and that he took an inappropriate approach to the accused's rights.

[13] Finally, the Appellant submits that the failure of defence counsel to raise the issue of bias at trial should not be a factor in their submissions on this point given the performance by defence counsel at trial as indicated above.

Position of the Crown

[14] The Crown submits that the Appellant has not demonstrated that any of the interventions by the trial judge fall into the definition of reasonable apprehension of bias as set out in R. v. Valley, [1986] O.J. NO. 77 (Ont. C.A.). He submits that a reasonable person viewing the trial and having thought the matter through would see that justice was done in the trial, citing R v. Stucky, 2009 ONCA 151, para. 72.

[15] The Crown submits that the comments of the trial judge must be considered in the context that this was the third trial date that had been set in the matter, the first two set dates did not proceed due to conduct on the part of the defence counsel. At the outset of this scheduled trial date, the trial having been ordered to proceed with or without counsel, the primary defence counsel did not attend, but sent a colleague, who arrived late for court, to request yet another adjournment. This gave rise to the judge’s comments about a possible Law Society review. On the second day of trial, the primary defence counsel showed up an hour late. The Crown submits that the trial judge’s comments in this circumstance do not demonstrate bias or in any way infringe upon the Appellant’s right to a fair trial.

[16] The Crown submits that the judge criticized both Crown and defence lawyers regarding late starts and inaccurate time estimates. This was initially set as a five day trial. On December 7, 2012, the trial judge criticized the Crown for not having his witness available when the court was scheduled to start. On the same date, he criticized both counsel saying that their estimate of time requirements was absolutely unreliable and that earlier trial time estimates were obviously not very good. After holding an in-camera meeting with counsel to discuss scheduling including discussions with the Regional Senior Justice, he apologized to the complainant who was still in cross-examination for the hardship caused to her by the number of days that she has spent preparing for and testifying, “I am persuaded that we’ve done all that we could in the circumstances to – to proceed with this trial as diligently as we could, but we haven’t been very successful. The complexity of the trial is – is substantially to blame for that and we can’t do anything about that.”

[17] The Crown submits that the comments made by the trial judge to defence counsel during cross-examination of the complainant with respect to delay and repetitive questioning are permitted as they serve to speed up the trial and protect the witness from answering irrelevant or repetitious questions.

[18] With respect to the trial judge referring to defence counsel as “pickerel”, criticizing them for putting him to sleep with their cross-examinations, calling their repetitive questioning a nasty habit, inquiring whether there was an echo in the room, the Crown submits that these comments are in jest and examples of the judge expressing himself in colourful folksy metaphors. The Crown points out that defence counsel took those comments in that light because they responded in kind, offering the judge a Red Bull, and confirming that his mother and his wife were the people who did not listen to him and therefore, he had to repeat what he said, and further in regard to delay, suggesting there was nothing more that he would like to do than to get in his car and go to a NASCAR race and not return to court.

[19] The Crown cites numerous instances where the trial judge assists defence counsel by clarifying questions, giving defence counsel an extra 15 minutes to prepare for cross-examination, telling the witness that she has to answer defence questions, and keeping the witness on track.

[20] The Crown submits that there were no comments made by the trial judge that demonstrated bias in her favour or against the accused. He submits that the judge’s comments when adjourning court in the midst of Crown questioning at the end of the day, that “she’s been very good and very strong”, does not indicate partiality or prejudging the complainant’s evidence or credibility. It indicates civility and common sense.

[21] The Crown submits that the trial judge fairly assessed the complainant’s understanding and interpretation of English words. She testified over the course of seven days, over a period of seven months and was ready to testify on multiple additional days when the trial did not proceed. The trial judge was best positioned to assess the credibility and reliability in the context of her cultural difficulties and perspectives.

[22] The Crown submits that the Appellant’s characterization of the complainant as hostile to the defence is not borne out by the example referred to. The trial judge clearly understood and properly assessed what the complainant meant when she responded to defence counsel’s cross-examination questions that began with, “can we agree that…”.

[23] The Crown submits that the trial judge properly and fairly dealt with the interpretation issues that arose during the course of the trial. A competency voir dire was held and the interpreter was found to be competent. Subsequently, an adjournment was granted to allow for simultaneous translation to be facilitated at another court facility.

[24] The Crown submits that the in-camera meetings held by the judge with counsel related to interpretation issues and scheduling issues. There is no evidence that such discussions impacted the fair trial rights or vital trial interests of the accused or the substantive issues raised in the trial.

[25] The Crown submits that although the Appellant complains about the trial judge requesting a search of the accused’s bag, the Appellant does not take issue with the trial judge’s authority to do so, rather argues that this created an appearance of bias. The Crown argues that this conduct does no such thing.

[26] The Crown submits that examples of the trial judge working towards an efficient and fair trial include the fact the arraignment of the accused on the charges did not take place until the second day set for trial, and the trial judge requesting that the Crown alter the order of calling its witnesses in order to permit defence counsel additional time to prepare to cross-examine the complainant. Granted this was in the context of denying a defence request for adjournment, but that was against the background of two prior set trial dates that did not proceed and the court ordering that the trial proceed on this occasion, with or without counsel.

[27] The Crown points out that by Day 4 of the set trial dates, the only witness to have testified was an investigating police officer.

[28] The Crown also points out that following conviction, the Crown requested revocation of the accused’s bail. After hearing full argument by counsel on the issue, the trial judge declined to do so.

[29] The Crown also points out that the trial judge requested that the complainant stand to give her testimony so as to be properly heard.

Appellant’s Reply

[30] On consent, the Appellant filed written submissions on the issues of bias and misapprehension of the evidence.

[31] I have carefully considered all of the submissions made by defence counsel and Crown counsel, both oral and in writing.

The Law

[32] The applicable legal principles are set out in Wewaykum v. Canada 2003 SCC 45, “would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude that it is more likely than not that the trial judge whether consciously or unconsciously did not decide fairly.”

[33] In R. v. Valley, [1986] O.J. 77 (Ont. C.A.), the court put the question to be addressed as follows, “The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.”

[34] In Valley, the trial judge indicated surprise when Crown counsel and defence counsel informed him that they estimated that the trial of what appeared to be a relatively uncomplicated case would take nine days. The Court of Appeal noted, “It is plain that the trial judge, perhaps understandably, exhibited impatience during the cross-examination of some witnesses, particularly during the cross-examination of the witness Burgess.” The Court viewed the occasions where the judge directed defence counsel during cross-examination to move on to another point as the trial judge “properly performing his function and did not improperly curtail cross-examination.”

[35] The same can be said in the case before me. There is no objection by the Appellant that the trial judge's comments as to delay and moving on without repetitious questions interfered with defence counsel's cross-examination of the witness or ability to make full answer and defence.

[36] The Appellant has not suggested that the trial judge’s interventions were of such a nature as to prevent counsel from doing their duty in presenting the defence or properly testing the evidence of the Crown witnesses. The Court of Appeal in Valley noted that the interventions in that case appeared to be numerous, but they were dispersed over a nine day trial. That court also noted that the trial judge was, on some occasions, critical of Crown counsel as well. The same can be said for Mr. Zhao’s case.

[37] The Court of Appeal in Valley also noted that defence counsel was able to remain unruffled, maintained her composure and dignity and carried on with her job.

[38] The Court in Valley found that the judge’s comments did not reflect upon the integrity of defence counsel. I do not find that the trial judge's comments in this case, especially the references to the Law Society, impugned upon the integrity of defence counsel. As in Valley, clearly the judge was of the view that the cross-examinations were repetitious and unduly lengthy.

[39] In Valley, the Court of Appeal was concerned that in the presence of the jury, the judge admonished defence counsel that she was getting herself in a position where she would be required to give evidence. The Court of Appeal was of the view that that went beyond what was both necessary or desirable, both in terms of frequency and severity. The Court was also of the view that the trial judge erred in stating that defence counsel had insinuated that the police had endeavoured to get the witness to change his story.

[40] The Court held, “I am satisfied, notwithstanding the severity and frequency of the judge's comments and admonitions to defence counsel, that those comments would not create an appearance of an unfair trial to a reasonable person who was present throughout the trial, having regard to the entire conduct of the trial, such that the verdict, must be set aside on that ground alone”.

[41] A new trial was ordered on other grounds.

[42] In R. v. Stucky 2009 ONCA 151, [2009] O.J. No. 600 (Ont. C.A.), the Court noted that in Valley, Martin J.A. had identified the types of interventions by trial judges which would result in the quashing of criminal convictions. Of relevance, to the present case, is “2. Interventions which have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence.” That case dealt with the trial judge cross-examining witnesses.

[43] In Martin v. Sansome 2014 ONCA 14, [2014] O.J. No. 279 (Ont. C.A.), the Appellant argued that the trial judge had intervened in the examination of witnesses and that the judge had called the Appellant an idiot during a motion for an adjournment at the outset of trial.

[44] The Court stated that, “Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial… The burden of establishing bias is on the party, arguing that it exists.” The court noted that the reasons the trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant and repetitive evidence, and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.

[45] In Martin, the Court noted that the trial judge's interventions were motivated by an effort to focus the evidence on the matters in issue, clarify evidence and move a difficult trial along. The Court also found that in a few instances the trial judge's questions were inappropriate, his language was ill advised, or he had transmitted his reaction to the distressing evidence that he heard. “Some of the trial judge's conduct reflected his impatience and annoyance.” He apologized to the parties for his impatience, explaining, “I heard far too much evidence about things that were irrelevant, most of which Mr. Martin insisted upon presenting despite my frequent entreaties to focus on the main issue.”

[46] The Court held, “While judges are expected to conduct the proceedings before them in a courteous and civil manner, and I cannot condone the trial judge’s expressions of impatience and annoyance, isolated expressions of impatience or annoyance by a trial judge as a result of frustrations… do not of themselves create unfairness”: Chippewas, at para.243”, para. 37.

[47] In Martin, the Court held that it considered the instances in which the trial judge's comments or questions were inappropriate, if taken alone, such statements could create the impression that he favoured the respondent's case over the Appellant’s. However, the Court was not satisfied that when considered in the context of the trial as a whole, a reasonable person would have the impression that the trial judge was predisposed to decide the issues before him in favour of the respondent.

[48] In R. v. Finney 2014 ONCA 866, the Court was concerned as to whether the interventions by the trial judge in any way prevented counsel from cross examining the complainant as he saw fit. The Court found that the trial judge's interruptions did not curtail any avenue of possible cross examination. The Court also found that the interruptions did not reveal sarcasm or level of criticism of counsel that was inconsistent with the conduct of a fair trial. “There was perhaps some indication of impatience near the end of the cross examination. Some degree of impatience by the later stages of the lengthy cross-examination was understandable.” Para. 4.

[49] In my view, the same can be said in Mr. Zhao’s case.

[50] A trial judge is entitled to manage the trial and to control the procedures to be followed at the trial to ensure that the trial is effective, efficient and fair to the parties. R. v. Snow (2004), 190 CCC (3d) 317 (Ont. C.A.), para. 24.

[51] The trial judge has the authority to prevent a trial from becoming unnecessarily protracted, from veering off course and becoming a commission of inquiry under a thin veneer of a criminal trial. R. v. Elliott (2003), 181 CCC (3d) 118 (Ont. C.A.).

[52] A trial judge may also intervene to focus the evidence on matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence and questioning, to dispense with proof of obvious or agreed manners, and to ensure a witness’ response, or failure to respond to questions does not unduly hamper the progress of the trial. Appellate courts must accord substantial deference to decisions made in the exercise of the trial management power. R. v. Hamilton (2011) 2011 ONCA 399, 271 CCC (3d) 208, paras. 48, 29.

Analysis

In Chambers Meetings

[53] With respect to the in-chambers meetings held by the trial judge, no objection was raised by defence counsel during the course of the trial. Defence counsel participated in these meetings. In fact, on one occasion, defence counsel requested the trial judge hold an in-chambers meeting, which he declined to do.

[54] The Appellant does not raise this issue as a stand-alone ground of appeal.

[55] The Appellant submits that the 5 instances identified by the Appellant caused the accused to be absent from his trial, thus demonstrating a reasonable apprehension of bias on the part of the trial judge.

[56] I am satisfied from the record that the trial judge identified and explained these meetings on the record in the presence of the accused adequately and that such explanations indicate that the accused's fundamental right to be present throughout his trial was not breached. Furthermore, the instances do not demonstrate a bias on the part of the trial judge, either real or apprehended, but rather an effort to ensure proper interpreting of the evidence for the benefit of the accused.

[57] On Day 2 of the trial, page 62 of the transcript, the judge explained on the record that the lawyers met in the library and discussed a “strategy, method of conducting this particular voir dire, the purpose of which is to allow me to determine whether the interpreter’s qualified or not.” He explained the process that was determined to be followed.

[58] On Day 3, page 56 of the transcript, the trial judge ordered a break because of confusion surrounding notes made by the investigating officer in the context of identifying what the problem is and then affording counsel time to sort the problem out. Upon return to the courtroom, defence counsel asked for a further in-chambers meeting, which the trial judge refused. The issue of the bag search was then dealt with on the record.

[59] On Day 3, at page 69, at the end of the testimony of the police officer, the judge asked counsel to meet with him in the administrative office in case the trial coordinator wanted to ask about scheduling issues.

[60] On Day 4, at page 15 of the transcript, the trial judge explained the in-chambers meeting from page 11, saying that the arrangements which led to the adjournment and the arrangements made to secure a simultaneous translation for the balance of the trial were the substantial results of the meeting held in chambers. “The administrative arrangements that needed to be made and the logistic difficulties and realities that had to be addressed were all discussed extensively in chambers in the presence of counsel on both sides and administrative staff. I agree that it is only fair to grant the adjournment.” Defence counsel submitted at that time that although it was not a direct request of the defence, he believed it was in the accused’s interest as well as the interest of the administration of justice, and waives 11(b) concerns.

[61] Finally, on Day 8, page 113 of the transcript, the judge confirmed that there was a further in-chambers meeting to discuss rescheduling and that sort of thing. He explained that there was a possibility of arranging to sit the following day, but that with the involvement of the Regional Senior Judge that could not occur. The matter was adjourned to a set court date, with counsel to arrange with the local and regional administration for future days required to complete the trial.

[62] It is my opinion there is no merit in the Appellant's submission that the in-chambers meetings demonstrated an apprehension of bias on the part of the trial judge. They are all examples of the trial judge's efforts to ensure proper interpretation of the proceedings, to arrange facilities for that purpose and to efficiently and effectively arrange for the necessary trial time to complete the trial.

The Judge’s Comments

[63] I do not find that the trial judge’s comments that the complainant had reached her limit in testifying or that she had been very good and very strong gives rise to a reasonable apprehension of bias in her favour or as against the accused. In counterbalance, he required that she stand to testify and to speak loudly about very personal matters. Furthermore, in dealing with her complaint about the interpreting, it is to be noted that this was the second complaint made to the judge on the issue, the first having been made by Mr. Zhao. Defence counsel dealt with the matter by stating that this second concern justified the concern that Mr. Zhao had previously. “Mr. Zhao’s concerns that he raised pertaining to the interpretation on Tuesday, I believe that was … came to light again today and it simply justifies the concerns that he had.” Defence agreed that in the interests of his client and the administration of justice, the matter should be adjourned to facilitate logistic difficulties and simultaneous translations, with no 11(b) concerns. The problem had been further identified, which permitted it to be effectively dealt with.

[64] The Appellant's criticism of the trial judge’s criticism of defence counsel can fairly be characterized as falling into two main areas, firstly arriving late for court and appearing unprepared or unfamiliar with the disclosure and secondly, the repetition, the belaboring of minor points in the opinion of the judge during cross examination. In his Reply, the Appellant specifically points out that he “did not raise ineffective assistance of counsel as a ground of appeal because the evident shortcomings of trial counsel, such as lack of preparation and apparent delaying tactics, did not amount to a miscarriage of justice. Although not exemplary, their comportment did not deny the Appellant a fair trial.” The Appellant goes on to say in his Reply, “the trial judge erred by repeatedly highlighting their incompetence while failing to acknowledge the Appellant's vulnerability, thus giving the impression that he did not care whether the accused's trial was fair.” It is my opinion that the learned trial judge was exercising his responsibility to manage the trial and that his comments to defence counsel were clearly designed to move the matter forward in a fair manner to an adjudication on the merits on the basis of relevant evidence. The efforts indicated on the record to ensure proper interpretation of the proceedings was one substantive step in this direction as was encouraging counsel to move the matter along without repetition and without belaboring the relevant issues.

[65] The trial judge admonished both Crown and defence counsel with respect to the length of their oral submissions at the end of the trial. In fact, he cut Crown counsel off from completing his oral submissions. At the outset of submissions, the trial judge made the following comments:

Counsel before you begin, I want to give some guidelines to both you and the Crown Attorney in terms of submissions. Obviously it has been a long trial. We have done it in three periods, except not three periods of hockey but three periods on the calendar and I think it is pretty obvious to all of you that I would not necessarily having heard submissions from you today that I would not be issuing judgment on[e] way or the other. Today I would be reserving and reviewing all of my notes and I have copious and extensive notes. What I am going to ask you to do is to, the best way I can explain it is to give a bird’s eye view of your submissions. In other words, I don’t expect you to give me extensive submissions to the extent of, you know, you give me all of your ammunition so to speak. I want you to outline what the nature of your argument or the nature of your submissions is. Maybe you can give me some examples of what you are talking about and then I am going to ask that you provide me with written submissions to expand, if necessary, on what you have told me. Once we are done here today with the submissions from both sides, I am going to be asking Madam Reporter to give me a transcript of that. … in the next few days I would expect you to provide me with written submissions that is more structured, that has your arguments in an orderly fashion and where you feel the need to expand a little bit from what you are telling me here today, fine and then we will take it from there. … I don’t expect you to be on your feet for two hours each in those circumstances, but as long as I get a very good idea of where you are going with your submissions and your argument, that’s all I expect of you today and you don’t have to fill in all the gaps about the detail; that you can do in writing and then that gives me a head start as well as I begin with reviewing my notes …

[66] Following defence counsel’s oral submissions and prior to Crown counsel’s submissions, the judge made these comments:

THE COURT: Crown … I am going to invite you to be a lot briefer that Mr. Leslie. So save your words and write it. Mr. Leslie has spoken and he has still got to write it. Hit the points, the main points and that will give Mr. Leslie an indication of where you are going and if he has any serious responses to that, I will except his response in writing with a copy going to you.

MR. LAARHUIS: Your Honour it does put me at the disadvantage of having then for the Crown to make fulsome submissions ---

THE COURT: Remember the old saying sometimes less is more?

MR. LAARHUIS: I appreciate that.

THE COURT: Not to worry. I expect you to highlight the points and, of course, expand right now on those areas that you feel are crucial to do so, but you are at liberty to expand in writing and that is what counts.

MR. LAARHUIS: I first want to deal with the statement of Mr. Zhao. The Crown puts considerably more---

THE COURT: Let me give you some direction on that. …

[67] Before Crown counsel completed his oral submissions, the trial judge interrupted him and effectively precluded any further oral submissions by the Crown on the merits of the trial,

THE COURT: Counsel I hate to interrupt you but obviously I am not a good communicator. I told Mr. Leslie to be brief. He didn’t listen to me. I told you to be brief. You didn’t listen to me. I really don’t want to work until eight o’clock tonight. That’s why I told you, you are going to give me written submissions. It appears that both of you are trying to talk as long as you can so that you can write as short as you can. I can assure you it is not going to work. Everything you are telling me here I want to see in writing, so get it right. At this hour you people are going home tonight, some of you are going home. I am going home too and I have to travel some hours and I don’t know what counsel are going to do. You are taking advantage of me. That is how I feel right now. I asked for written submissions and you are trying to give it to me orally. I am getting a little frustrated with the whole process. I want it in writing so that I could get out of here at a reasonable hour. After a while I am so exhausted, this is intensive, I am so exhausted from what you are telling me. I am going to have to read about it, because I am not focusing very much. So please put an end to this. Give it to me in writing. I want to be fair to everybody. But, as I say, I feel like I’m being taken advantage of. I asked for highlights, I am getting details.

MR. LAARHUIS: I appreciate that Your Honour. I have gone through the trouble of writing out my submissions in anticipation of today and my friend---

THE COURT: Well print it out and send it to me. … I am just saying it is more intensive and more complete than I had hoped for because it is late in the day. This is a complex case. I am not going to decide tonight. I wanted you to give defence counsel some idea of what your submissions were so that they can respond in writing and vice versa. What other points can you give me, in point form, so that the defence is alert to what you are saying?

MR. LAARHUIS: Well I am going to make submissions on similar fact, that’s for sure.

THE COURT: Right, well I have ruled in that similar facts are there. I know what to do with similar facts. You can give me that in writing. So now defence counsel knows you are going to rely on similar facts. I think they have known that for quite some time, as I have, and I have the decision that you are relying on, so in writing you can indicate to me just to what extent I can use that.

MR. LAARHUIS: I don’t think there are going to be any surprises that I am going to be attacking the credibility of Lili.

THE COURT: Of course. That is what similar facts is all about.

MR. LAARHIUS: No, no about Lili Wang.

THE COURT: Yes, I can appreciate that.

MR. LAARHUIS: Well if we are not interested in details in a general way that is what I am going to do.

THE COURT: If there was time today I would allow you to elaborate a little bit on that. I think I know where you are going, but unfortunately in view of the time it is going to have to be in writing.

MR. LAARHUIS: I don’t think there are any new areas that I haven’t touched on at least peripherally so those are my submissions today.

THE COURT: Thank you.

[68] The trial was at the end of the evidence and counsel were making substantive oral submissions on behalf of their respective positions as to not guilty or guilty. These exchanges are further examples of the trial judge expressing impatience, annoyance and frustration with both counsel. But in my view, as with the other examples identified by the Appellant, this would not cause the accused to reasonably consider that he had not had a fair trial or a reasonably minded person who had been present throughout the trial to consider that the accused had not had a fair trial. Such persons would probably conclude that the judge was impatient and rude, but not to conclude that the judge had a predisposition to decide the case against the accused.

[69] The trial judge's reference to the accused as a less than intelligent man, and his comments about the accused's concern at the time of sentencing about his counsel’s failure to meet with him in advance are unfortunate.

[70] However, I do not find that the trial judge's reference to the accused in respect of the interpretation issue gives rise to a reasonable apprehension of bias on the part of the trial judge in law. That comment does not run afoul of the authorities, which I have cited.

[71] With respect to the comments made by the trial judge at the time of sentencing, at the highest, these could give rise, perhaps, to a basis to appeal sentence, which is not being done in this case. I do not agree with the Appellant's submission made in his Reply that, “the trial judge's decision at the sentencing hearing essentially forced the Appellant to rely on the representations of counsel, whom the trial judge had himself mocked and berated for incompetence throughout the trial. This would cause any reasonable informed person viewing the matter realistically and practically to be concerned that the trial judge was more likely than not biased against the Appellant.”. The criticism that the trial judge had of defence counsel during the course of the trial are different in nature, as I have described above, than failing to meet with the client between conviction and sentencing. There is no indication that the Appellant lost confidence in his defence counsel during the course of the trial and the submissions made on his behalf against conviction.

[72] In his Reply, the Appellant asserts that the Crown gave evidence in its appeal submissions. I have relied only on the record the explanation of the in chambers discussions. I do not consider any Crown comments about the experience of the trial judge or his folksy mannerisms or the experience of trial counsel.

[73] I note that the Appellant does not assert that his right to make full answer and defence, or that his counsel's ability to fully cross-examine the complainant as he saw fit, or that his counsel's ability to perform his duty to advance the defence were impaired by the trial judge's conduct or comments to the extent that there arose a reasonable apprehension of bias.

[74] On a final note, I observe that although the trial judge found the statement of Mr. Zhao to be equivocal, he interpreted it to be closer to denial than admission for the purposes of his deliberations, thus, favouring the accused’s position.

[75] Some of the comments of the trial judge are inappropriate and ill-advised. I find that they reflect his impatience, intolerance, frustration and sarcasm with respect to both counsel, although primarily defence, but do not amount to bias or a reasonable apprehension of bias at law.

[76] For these reasons and on the authorities to which I have made reference, I find that the appeal fails on the issue of reasonable apprehension of bias.

Issue #2 – Misapprehension of Evidence

Position of the Appellant

[77] The Appellant submits that the trial judge misapprehended evidence that was central to the credibility and reliability of the complainant. The Appellant submits that he misapprehended three aspects of the complainant’s testimony, namely, his findings that there was no evidence that she suffered from a psychological illness, that she could distinguish real from imaginary events, and that any confusion that she did suffer from was caused by the accused.

[78] The Appellant cites evidence and in particular, at compendium Tabs 14 and 15, where the complainant admits to hearing voices, seeing white lights, being controlled by a turtle, having a spirit at her side, and acting on voices. The Appellant submits that this is evidence of psychological issues affecting the complainant.

[79] The Appellant submits that the trial judge erred in finding that there was “no evidentiary foundation for such a finding the complainant seems to be suffering from some kind of psychiatric, psychological issue and invite the court to speculate as to the possibility the entire sexual element of the relationship was a figment of her imagination.” That is, despite the foregoing testimony given by the complainant, the trial judge found that there was no evidentiary foundation for the defence position.

[80] The defence submits that the trial judge applied the wrong standard by requiring proof rather than considering whether the evidence raised a reasonable doubt as to whether the complainant's allegations were real or imagined.

[81] The defence points out that the complainant's testimony concerning a first incident with the accused is vague, lacking in detail and the complainant testified that she cannot recall. Her description of a prior incident with her Egyptian roommate is similarly vague and uncertain. The defence submits that this indicates that she does not give reliable testimony.

[82] The defence submits that the judge erred in accepting the Crown argument that the complainant's delusions were the result of the accused’s sexual assaults upon her.

Position of the Crown

[83] The Crown submits that the complainant’s testimony provided ample evidence as to the fact that she could distinguish the real from the imaginary. He submits that the trial judge was entitled to come to the conclusions that he did after considering all of the evidence that was presented at the trial. The trial judge addressed this issue in the course of his reasons and determined that the complainant was a credible and reliable witness. Crown submits the evidence supports that finding. The Crown submits that the trial judge appreciated the live issues concerning the complainant’s evidence as to her hearing voices, white lights, spirits and bad energy, and took this into consideration in reaching his conclusions.

[84] The Crown argues that even if the trial judge had found that the complainant had a mental illness of some sort, it would not have affected the outcome of the trial. “The mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her testimony.” R. v. O’Connor, [1995] 4 S.C.R. 411, para. 143.

[85] The Crown submits that the trial judge fully and properly considered the complainant’s evidence in combination with all of the other evidence, and was entitled to accept her as a credible and reliable witness.

[86] The Crown also points out that the complainant did testify that, as a result of the assaults and treatment by the accused, she went on mental health medication for a short period of time and further that after-the-fact, she suffered from some sort of dissociation.

[87] The Crown asserts that an appellate court must give deference to the trial judge's findings of credibility with respect to the complainant and the accused’s wife.

[88] The Crown submits that the judge's reasons show that the conviction was not based on the complainant's evidence alone, but also on the evidence of Ben, the police evidence and the similar fact evidence which was admitted at trial by the trial judge whose decision in this regard was not appealed.

[89] Crown points out that in his reasons, the trial judge dealt with the defence submission that the complainant had psychological challenges. The Crown submits that the record supports his conclusions.

[90] The Crown further submits that the record supports the trial judge's conclusions that the complainant could distinguish between real and imaginary, with respect to the essential elements of the offenses charged.

[91] The Crown submits that the trial judge dealt with all of the arguments raised by the Appellant on this point and that the record supports his conclusion.

Appellant’s Reply

[92] The Appellant submits that the Crown is mistaken in casting this ground of appeal as one focused on the need for deference toward the credibility findings of the trial judge.

[93] The Appellant submits that that was not the issue in this appeal.

[94] The Appellant submits that the trial judge's error was that he held, contrary to the evidence from Ms. C. herself, that she was always able to distinguish between real from imagined, that there was no evidence that Ms. C. suffered from any psychological issue and that the Appellant's treatment of Ms. C. caused her hallucinations. The Appellant submits that these conclusions were not available on the evidence presented at trial. The Appellant states that the appeal invites this court to find that the trial judge misapprehended the evidence that he used to find Ms. C. reliable, and thereby occasioned a miscarriage of justice.

The Law

[95] The decision of the Supreme Court of Canada in R. v. W.H. 2013 SCC 22, [2013] S.C.J. No.22, was on appeal from a jury verdict. The Court stated that “the verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially, could not reasonably have rendered.” Para. 26. The Court went on to say that the traditional test for unreasonable verdict applies to cases such as this one, in which the verdict is based on an assessment of witness credibility. That principle was affirmed in the context of a judge alone trial. The Court confirmed that the Court of Appeal must show great deference to the trier of facts assessment of witness credibility given the advantage it has and seeing and hearing the witnesses’ evidence.

[96] That Court found the most useful articulations of the test to be as follows, “the unreasonableness of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury” and, that a verdict based on credibility assessment is unreasonable if “the trial court's assessments of credibility cannot be supported on any reasonable view of the evidence.” Para. 34.

[97] The Appellant relies upon the principles set out in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), p.221:

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[98] The Appellant also relies upon the Supreme Court of Canada decision in R. v. Lohrer 2004 SCC 80, [2004] S.C.J. No. 76,

1 BINNIE J. :— This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat. A majority of the B.C. Court of Appeal affirmed the convictions. Hollinrake J.A. dissented. He found applicable to this case what was said by Doherty J.A. of the Ontario Court of Appeal in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, as follows at p. 221:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.

Later in the same paragraph, Doherty J.A. stated:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot "be supported by the evidence" within the meaning of s. 686(1)(a)(i).

2 Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".

6 In our view, none of the errors urged by the appellant goes to "the substance of material parts" of the evidence that bears on an "essential part in the reasoning process" of the trial judge leading to the convictions.

7 We would apply to the trial judge in this case what was stated by Rothman J.A., dissenting in the result, in the Quebec Court of Appeal in R. v. C. (R.) (1993), 81 C.C.C. (3d) 417, where he said at p. 420:

I can see no indication that [the trial judge] failed to direct himself to the relevant issues or that he erred in his appreciation of the evidence in a manner that could have affected the outcome.

I emphasize the last phrase. The reasons of Rothman J.A. in dissent were adopted by a majority of this Court in restoring the conviction, reported in , [1993] 2 S.C.R. 226.

8 In our view, the statement of Rothman J.A. in C. (R.) and the statement of Doherty J.A. in Morrissey both correctly emphasize the centrality (or "essential part") the misapprehension of the evidence must play in the trial judge's reasoning process leading to the conviction before the trial judgment will be set aside on appeal on that basis.

Analysis

[99] My careful reading of the reasons of the trial judge in this case lead me to the same conclusion as was reached by Justice Binnie in Lohrer.

[100] I do not find that the trial judge was mistaken as to the substance of the material parts of the evidence, or that he made any errors in apprehending the material parts of the evidence which played an essential part in his reasoning.

[101] With respect to the complainant's testimony, he addressed the defence submissions, including concerning her professed naivete on sexual matters, the submissions that she was evasive in her cross examination, the psychiatric or psychological issues arising from her acknowledgement of seeing lights and hearing noises, her delay in reporting and in fact returning to Mr. Zhao’s residence, and the unlikelihood of the “alternating current” testimony.

[102] He found that there was no evidentiary foundation for the defence submission that the entire sexual element of her relationship with the accused was a figment of her imagination. In making this statement, he did not impose any burden of proof on the accused. He clearly considered “her own admission that she was having illusions, hearing voices, with light coming from her eyes, shadows, pushing her around and attempting to possess her… (and) admittedly she followed up on the directions of these voices resulting in mischief.”

[103] In considering these admissions, and her description of what occurred, he concluded that she “could not possibly have concocted such an intricate story.”

[104] He based his decision for conviction on the global assault charge on the basis of being satisfied beyond a reasonable doubt.

[105] He found the complainant to be credible and reliable for the reasons that he stated.

[106] He found the witness Ben to be credible. He found the accused's wife to be not reliable or credible as a witness. He found that the testimony of the police officer, Ben and the similar fact evidence bolstered the complainant's credibility. None of these determinations were challenged on the appeal.

[107] This ground of appeal as advanced must also fail.

Issue #3 - Unreasonable Verdict for Unlawful Confinement

Position of the Appellant

[108] The defence submits that the definition of this charge is as described by Justice Watt in R. v. Pariss 2013 ONCA 515, para. 46.

[109] She submits that the learned trial judge erred in his reasons when he said, “There is a consensus that she was very upset and wanted to leave and that he used physical force to prevent her from doing so”. She alleges that he erred in concluding, “… When, for a brief period the complainant wanted to leave the immediate area of the defendant's clinic, I find that the accused physically prevented her from leaving, when he intervened by grabbing and dragging her back into his clinic against her will.”

[110] The Appellant submits that there was no such “consensus” on the part of the parties and further that there was no evidence that she was grabbed by the accused to prevent her from leaving.

[111] The Appellant points out that in his statement to the police, the accused does not agree with the officer when she puts to him on several occasions that he grabbed the complainant by the arm.

[112] The Appellant submits that the testimony of the complainant does not warrant a finding of guilt on this count.

Position of the Crown

[113] In its factum, the Crown submits that there was evidence that supported the trial judge’s finding that there was a consensus that she was very upset and wanted to leave and that the accused used physical force to prevent her from doing so. The Crown points to the statement made by the accused to the police and the clear testimony of the complainant.

Analysis

[114] I find that the evidence of the complainant supports the finding, made by the trial judge, that she was unlawfully confined by the accused and guilty of that charge.

[115] The evidence favourable to the accused did not contradict or dispute the evidence of the complainant on this issue. In his police statement, the accused acknowledged that she was upset and that he didn’t want her to go out and that he grabbed her by the arm to bring her back in. He also said, “I touched her, but she was pushing my hand away… She angry maybe a little time… She pushing my away.”

[116] Her testimony included the following, “I wanted to get out. And then I went out of the clinic. He grabbed me to get me back … I was struggling outside. At the beginning he pulled me back…, I was struggling I didn't want to get back to his clinic”; “when he pulled me back to the clinic. I refused to go back … he was trying hard to pull me back… It was in a passage. It took place in the passage because he pulled me into the clinic. I wanted to rush out. I didn't want to get back”; “I wanted to leave and he tried to stop me. And then I dashed to the door, through the door… And he dragged me back… I didn't want to go in… and then that was the altercation…I screamed because I didn’t want to go in the clinic and was I screaming”; “I wanted to get out. I didn’t want to go in”; “He tried to stop me from dashing out… Then he tried to grab me and get me back. He held me, stopped me from going out… I think he tried to stop me from doing that… .” Similarly, she also testified, “he tried to drag me. And then I didn't want to go in so during this course of me being dragged inside we had another struggle… He dragged me… Got me through the first door and he closed the door. I tried very, very hard to get out of the first door. So as the door was closed I was sitting right next to the door and he still grabbed me and tried to drag me inside to the second door.”

[117] They were the only two witnesses to the incident. Neighbours had heard the noise and they called the police.

[118] The trial judge recognized that the restraint was for a brief period, but that the accused physically prevented her from leaving when he intervened by grabbing and dragging her back into his clinic against her will.

[119] There is no question that the evidence before the learned trial judge supports his finding of guilt for unlawful confinement, as defined by Justice Watt. The accused's restraint of the complainant on her evidence supports the trial judge's conclusion that it was “for any significant period of time, the victim was coercively restrained contrary to her wishes so that she could not move about according to her own inclination, and desire.”

[120] This ground of appeal is rejected and dismissed.

Decision

[121] For these reasons, the three grounds advanced on appeal do not succeed.

[122] The appeal is dismissed.

Honourable Mr. Justice Gary W. Tranmer

Released: January 17, 2017