Superior Court of Justice – Ontario

CITATION: R. v. Fang, 2017 ONSC 6206

COURT FILE NO.: CR-17-70000001-00AP

DATE: 20171017

RE: R. v. Yu Fang

BEFORE: Justice S. Nakatsuru

COUNSEL: Tanya Kranjic, for the Crown

Yu Fang self-represented

HEARD: October 17, 2017

ENDORSEMENT

[1] This is a Crown appeal of a directed verdict of acquittal on a single count of assault. The Crown submits that the learned trial judge erred in denying the appellant the right to make submissions on the defence motion for a directed verdict prior to granting it. The Crown further submits that the trial judge erred in granting the directed verdict by misapplying the test. Finally, it is submitted that the trial judge displayed a reasonable apprehension of bias during the trial. The Crown seeks an order for a new trial.

[2] Before addressing each ground of appeal, some context to the trial is useful. The Crown’s case involved only one witness, the complainant. It was a dispute between neighbors. The complainant testified that she ran into the accused in the elevator of the building that they both lived in. At the elevator, the complainant testified that Ms. Fang deliberately brushed her shoulder when Ms. Fang walked out with her young son. When the complainant pretended to videotape her, Ms. Fang returned. Here, the complainant says Ms. Fang spat at her and then threatened her with a tennis racket she was carrying. After this, the argument intensified and the complainant’s husband intervened. Ms. Fang suffered a fracture as a result. The husband was charged with assault bodily harm. He resolved his charge and received a conditional discharge.

[3] There was a surveillance video of the interior of the elevator. This was used both in examination-in-chief and in cross-examination. The defence challenged the complainant using the video. The defence argued that none of what the complainant alleged was shown on the video. Rather, the defence suggested that the complainant and her husband, who outweighed the diminutive Ms. Fang considerably, were the aggressors. It was suggested that the complainant made up these allegations to support her husband.

[4] Before turning to the grounds of appeal, I will say this. The experienced trial judge heard the entirety of the Crown’s case. He did not interrupt. He appeared to have listened carefully to the evidence. He quite clearly had a good look at the strength of the Crown’s case. And he did not think much of it. A view, as a trier, he was entitled to hold at the time of the motion for a directed verdict.

A. Denial of the Right to Make Submissions

[5] It is trite that the right to be heard is a fundamental part of a fair hearing. Parties should be afforded the right to make submissions before a judge decides a significant matter. The Crown complains that the trial judge did not do so in this case. It is true that when defence counsel moved for the charge to be dismissed, the trial judge responded quickly that he was granting the motion. He said so a number of times. In my view, this was rather impetuous on his part. It is further true that when the Crown initially asked to make submissions, the transcript reveals the judge saying no. However, the trial judge soon thereafter tells the Crown to come on. I have carefully considered this part of the transcript. In my view, while it is open to other interpretations, I find that the comment made by the trial judge was an invitation to make submissions. This is so because that is exactly what the Crown immediately does. The Crown then makes a short submission on the motion that was not interrupted by the trial judge. This is what the Crown stated:

[T]here is evidence upon which a reasonably instructed trier of fact could convict here. We have the testimony that she was spat on. A spit is all that’s required to ground an assault. I appreciate that it’s not a strong case, but that’s not the case on directed verdict. It’s whether a reasonable trier of fact could convict.

[6] The trial judge said he understood. The Crown did not make any more submissions. The Crown did not ask to make any more submissions. In my view, the opportunity to be heard was granted to the Crown. The Crown made very succinct submissions. The point was made that a spit as testified to by the complainant was an assault and passed the test for a directed verdict. What more needed to be said? Everyone in court would have been familiar with the law on such a motion. The trial judge is presumed to know it. The trial judge did not need the assistance of defence submissions. While the hearing on the motion was exceptionally brief, it was not unfair.

[7] I appreciate that initially the trial judge granted the motion without hearing from the Crown and appeared reluctant to entertain submissions when the Crown objected. These were unwise comments made likely in the heat of the moment. But at the end of the day, fairness was afforded to the Crown. I am reminded of Hill J.’s comment in R. v. J.V. 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027 (S.C.J.) at para. 107 where he said:

While not every breach of the audi alterem partem rule during a proceeding will warrant intervention for excess of jurisdiction, a denial of the right to be heard on the ultimate issue in the hearing is a flagrant violation of natural justice. Of course, statement of a tentative position or tentative conclusion, with a clear opportunity afforded to make submissions prior to a final decision, does not breach a party’s right to be heard.

[8] I find that such a clear opportunity was afforded. The judge made comments about granting the motion which are criticized on appeal. But the trial Crown was then given a chance to persuade the court before the trial judge gave a brief oral judgment.

[9] As a final comment, let me say this. This was a short trial. The charge was minor. In a busy court such as the Ontario Court of Justice, proceedings must sometimes be efficiently disposed of. Of course, the proceedings must remain fair. But content of that fairness often depends upon the context of the proceeding and how the events unfold. The trial process remains a very human process. In this case, the fact that this motion was disposed of efficiently and expeditiously, but with an opportunity to the losing party to be heard, is not a reversible ground of appeal.

B. The Directed Verdict Motion

[10] In my opinion, the error made by the trial judge was not the process by which the motion for a directed verdict was heard, but it was with the decision itself. It is well established law that on a motion for a directed verdict, the trial judge cannot make assessments of credibility and must accept the Crown’s case at its highest.

[11] Here, the complainant gave direct evidence of an assault. This was both the intentional brushing of her body and the spit that was intentionally directed at her and hit her lower body. Of course, she was cross-examined and challenged on this sometimes with the use of the surveillance video. However, the complainant maintained her evidence.

[12] In granting the motion for a directed verdict, the trial judge simply referred to the video. He stated he saw no brushing as the accused was going off the elevator and there was no spitting. There was no intentional application of force on that video. Therefore he allowed the motion and discharged the respondent.

[13] The trial judge erred by ignoring the evidence of the complainant. By doing so, he misapplied the test on a motion for a directed verdict. In this case, there was direct evidence on each element of the offence including an intentional non-consensual application of force against the complainant. This was direct evidence given by the complainant herself. On that evidence, a reasonable jury properly instructed could have convicted Ms. Fang of assault beyond a reasonable doubt. If the trial judge did in fact consider her testimony, he must have rejected her credibility by preferring what he saw on the surveillance video. This he was not entitled to do. Either way, this was a reversible error. A new trial must be ordered.

C. Reasonable Apprehension of Bias

[14] The Crown further alleges that she has established on a balance of probabilities reasonable apprehension of bias on part of the trial judge. It is submitted that this test has been met by the trial judge prejudging the case and having entered the fray. In my view, neither has been established.

[15] First of all, much of the Crown’s argument is tied into the fact that the trial judge had prejudged the motion for a directed verdict and did not afford the Crown an opportunity to make submissions. I have found that the trial judge did provide the Crown a fair hearing and an opportunity to make submissions.

[16] Secondly, I do not quarrel with the Crown’s argument that the trial judge had formed a pretty strong opinion about the case. And he expressed it on the record. Perhaps in overly frank language. However, context is important. Here the trial judge had heard the entirety of the Crown’s case. This is not a case where it appears he had prejudged the matter early on before the close of the Crown evidence. He did not interfere with the presentation of the case. He conducted an orderly trial with the assistance of both counsel.

[17] It is further true that the trial judge stated at the end of the Crown’s case that there was an obligation on the Crown to assess and continually re-assess reasonable prospect of conviction. This is an obligation that exists even if not spoken of. The trial judge initially stated he would give the Crown a chance to consider this during the lunch break while they dealt with other matters. The Crown indicated that was the extent of the Crown’s evidence. The trial judge asked if the Crown could consider their decision without the adjournment over lunch. The trial judge asked if the case needed to go further. The Crown then advised the court about resolution discussions that were unsuccessful. As an aside, such a comment without the consent of the parties is not something that should be raised with the trial judge. The trial judge asked in a rhetorical manner what particular discussions could be had in that case. The Crown then invites the defence to make a motion for a directed verdict if he wished. The defence then rose to make such a motion.

[18] Despite counsel’s able submissions, I do not see this exchange as an improper interference with or wrongful supervision of the Crown’s prosecutorial discretion. Although a reasonable person would view that the judge had an opinion about how the Crown should exercise her discretion in that case, the same objective individual understanding the proper limits of the role of the judge and the Crown, would not view this exchange as raising a reasonable apprehension of bias. It was brief. No pressure was exerted. At its highest, the trial judge was making an inquiry of the Crown and was willing to afford the Crown time to fulfill her own obligations. Had she come back and declined to withdraw or stay the charges, there is nothing to realistically suggest that the trial judge would not have accepted that decision. Indeed, in the case, after the brief exchange, the Crown was not willing to exercise her discretion to do so and the matter proceeded on. It may well be that the entire context of the case which involved frustration on the part of the trial judge seeing valuable court time being used up by a case such as this may have led him express himself unwisely and to commit the above error on the motion for a directed verdict. However, overall, I find it did not rise to the level of a reasonable apprehension of bias.

D. Conclusion

[19] In conclusion, a new trial is the proper order. That said I am confident that the Crown will consider whether it is in the public interest to retry Ms. Fang.

Nakatsuru J.

Date: October 17, 2017