COURT FILE NO.: 00G003967
DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
YONGSHENG LIU
Counsel:
Suzanne Schriek, for the Crown
Jenny Prosser, for the Applicant
HEARD: In writing
REASONS FOR DECISION
PHILLIPS J.
[1] Yongsheng Liu (the "applicant") was convicted of first degree murder on December 7, 2002 as a result of intentionally causing his wife, Fengzhi Huang’s, death while sexually assaulting her on February 29, 2000.
[2] The applicant has applied under s. 745.6 of the Criminal Code (the “Code”) for a reduction in his 25 year parole ineligibility period. I have been designated by the Chief Justice of the Superior Court of Justice to screen the application and make a determination as to whether it shall be considered by a jury.
[3] The test, as set out in s. 745.61 of the Code, requires that the applicant demonstrate on a balance of probabilities that there exists a substantial likelihood that the application will succeed.
[4] For the reasons that follow, I conclude that the applicant has not shown, on a balance of probabilities, that the application has a substantial likelihood of success at this time.
Materials Filed
[5] The applicant filed a two-sentence affidavit sworn January 12, 2018 attesting to the veracity of various attachments. Those materials, which comprise the evidence he proposes to introduce before a jury in support of early parole, are:
- A psychological risk assessment report dated May 30, 2017;
- A Certificate of Completion: Living Well with Diabetes Workshop dated October 18, 2017;
- A Certificate of Completion: Living Well with Chronic Pain Workshop dated October 18, 2017;
- A Curriculum Vitae for Yongsheng Liu (including a list of publications);
- A Carleton University Official Transcript for Yongsheng Liu dated August 30, 2005, relating to courses taken from 1998 to 1999;
- A Master of Computer Science Degree for Yongsheng Liu dated June 17, 2000;
- A Professional Reference Letter from Professor George W. Housner dated June 2, 1994;
- A Recommendation Letter from Tsuneo Katayama, Secretary General of International Association for Earthquake Engineering dated May 28, 1994; and
- A Reference Letter from Professor Jun-Rong Huo dated May 21, 1994.
[6] The Crown filed extensive materials, including a complete transcript of the trial (a record comprising almost three thousand pages).
The Character of the Applicant
[7] Very obviously, commission of first degree murder is an act revealing abysmally bad character. It is fitting that the normal legislated sentence for such offensive misconduct is imprisonment for life, without eligibility for parole for 25 years. However, as s. 745.63 contemplates, character can change over time for the better. As a result of all sorts of causes, not least of which the remedial effects of the correctional system, people can improve. The question is whether there is evidence that Mr. Liu’s character has changed since he committed first degree murder to a degree that could add to the likelihood of a jury recommending him for early parole.
[8] Determining whether Mr. Liu’s character has improved since murdering his wife is complicated by the fact that he, to this day, steadfastly maintains his innocence. Even the curriculum vitae he prepared and submitted as part of what he proposes to put before a jury indicates in its first lines that he has been wrongfully convicted and is working toward exoneration.
[9] Our law does not require an offender to agree with his jury’s finding of guilt in order to qualify for application of s. 745.6. There is nothing necessarily wrong with, nor especially unusual about, a convict insisting upon his innocence. In fact, there are many examples of 745.61 applications being allowed despite the applicant’s self-description as being wrongfully convicted. For instance, it can be that there is so much evidence pointing to the offender having improved character-wise since his conviction that the fact he maintains his innocence is “a factor best left to a jury to consider” (See: R. v. Schaefler (2009), 84 W.C.B. (2d) 360 (Ont. S.C.)).
[10] At the same time, it has to be noted that as much as it is anyone’s right to maintain their innocence, the consequence of such a position is that is it deprives the offender on an application like this of some of the best arguments supporting an assertion of meaningful character transformation. Acceptance of responsibility is a precursor to true insight and remorse which are key to actual self-improvement. While those sorts of elements are not mandatory, a claim to a jury that character upgrading has taken place in areas that actually matter is compromised without them.
[11] In any event, on the evidence, there is virtually no indication that Mr. Liu’s character has changed much since his conviction. He appears to be, in essence, the same man who went into the penitentiary all those years ago. The information about Mr. Liu’s employment is quite dated. It predates the offence. In addition, the applicant has presented numerous character references in the form of letters attesting to his expertise as an engineer. Those letters also pre-date the offence. I take their submission to imply that his pre-conviction educational and professional achievements point to good character in that they connote a strong work ethic and related self-discipline.
[12] In my judgement, a jury would be unlikely to put any weight on those materials as character references. They speak to a different context and about a different time. The fact that people spoke highly of the applicant before his conviction is neither surprising nor probative of the relevant question: the degree, if any, to which Mr. Liu has improved. While I suppose they could suggest a diminished risk of recidivism based on a likelihood of employment, they do not show any sort of character change in the man since he committed the offence. As such, in my view, they do not bear on the question that the “character” aspect of s. 745.63 speaks to.
Applicant’s Conduct While Serving the Sentence
[13] Mr. Liu has done well in custody. There have been no reports of any difficulty on his part in following the routine and discipline of the institutional environment. This is as a positive factor for him. It is evidence of a willingness and ability to follow rules and direction. This could add to a likelihood that a jury could deem him suitable for parole, a form of community supervision requiring compliance in respect of terms and conditions.
The Nature of the Offence
[14] It is difficult to put a first degree murder onto a spectrum of seriousness. Of course all such offences are horrible misdeeds that shock the conscience. That said, I would put this offence at the high end of any range. I note that it involves an egregious breach of trust in that it was domineering violence perpetrated by a man against his wife. The circumstances connote a sort of self-centred possessiveness, as if Mr. Liu had decided that he could do what he wanted to his spouse and that ultimately if he could not have her then no one else would either. The nature of the injuries to Ms. Huang’s neck and genitalia make clear that her death was preceded by a prolonged episode of sexual violence. Finally, I consider it highly aggravating that after committing murder, Mr. Liu set things in motion so that his then seven year old daughter would be the one to discover her mother’s body.
[15] I have little doubt that a jury would be very troubled by the nature of this offence. It is highly unlikely that they would unanimously decide that the 25 year parole ineligibility period currently in place is in any way out of line.
Victim Information
[16] While I am informed that the victim’s family came from China to attend the trial, there is no information from them about this application. I find that unsurprising and of no moment. I would not expect any victim’s family to provide input at every step.
Other Relevant Considerations
[17] The applicant has filed a psychological report dated May 30, 2017. The report is generally quite positive. I have decided that a jury would give it very little weight.
[18] The report mentions several times that Mr. Liu has never been convicted of a sexual offence. This is inaccurate. The index offence was a constructive first degree murder. Ms. Huang was found with compression injuries to her neck and trauma to both her vagina and anus. Mr. Liu’s semen was found within her body. The trial verdict makes clear that the jury accepted the prosecution theory that Ms. Huang was murdered in the course of a sexual assault. This is very much a sex offence and Mr. Liu is very much a sex offender.
[19] The reason this inaccuracy is problematic is that it appears to significantly inform the psychological assessment and opinion. As well, the failure to appreciate the full scope of the index offence also colours the recommendations made as to what rehabilitative programming is best suited for Mr. Liu and his future prospects.
[20] In my view, the psychological risk assessment report dated May 30, 2017 so misses the mark in respect of the nature of the offence and the applicant’s issues that it would fail to persuade any jury of anything.
Discussion
[21] I remind myself of the purpose of the contemplated hearing, as set out by the Supreme Court of Canada in R. v. Swietlinski 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481 at para. 12:
What is important is to understand that the procedure is one for reassessing long-term imprisonment imposed by law (in the case of first-degree murder) or by a judge (in the case of second-degree murder). The purpose of a reassessment procedure, especially when it takes place 15 years after the initial decision, is necessarily to re-examine a decision in light of new information or factors which could not have been known initially. It follows that the primary purpose of a s. 745 hearing is to call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty upon the applicant. …
[22] Additionally, I adopt the reasoning of Garson J. in R. v. Azzam [2017] O.J. No. 2700 at para. 31:
There can be little doubt that the gatekeeping function at this juncture is intended to screen out frivolous applications and protect families and society from needless and painful hearings that will likely end in failure for the applicant. Only meritorious applicants should come before juries.
The stringent test places a high burden on the applicant and is intended to ensure that any departures from the mandatory life sentence for first degree murder without parole eligibility for 25 years are warranted.
[23] Effectively, I am required to put myself in the shoes of a prospective juror, applying the same test and relying on the same factors that a jury would consider and attempting to predict the outcome.
[24] In the end, I must balance the positives with the negatives.
[25] It is true that Mr. Liu is a very intelligent and educated man who undoubtedly has employment prospects. In addition, I agree that he has shown himself to be compliant with authoritative direction in a way that would suggest a likelihood of success in following the strictures of parole.
[26] On the other hand, there is no evidence that the character deficiencies and related attitudes that animated the index offence have been addressed such that they could be said to have changed. In addition, the offence is replete with aggravating factors that make the normal parole ineligibility period entirely fitting. In all the circumstances, I see no basis upon which there is a likelihood that twelve jurors would conclude that a sufficient transformation has occurred so as to warrant reduction of the mandatory twenty-five year period of parole eligibility.
Conclusion
[27] Having reviewed the evidence in light of the factors enumerated in s. 745.63 of the Code, I am not satisfied that the applicant has met the onus of proving on a balance of probabilities that there is a substantial likelihood that a unanimous jury would agree with early parole eligibility.
[28] The application is dismissed.
Mr. Justice K.B. Phillips
Released: June 14, 2018
COURT FILE NO.: 00G003967
DATE: 2018/06/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
YONGSHENG LIU
Applicant
REASONS FOR DECISION
PHILLIPS J.
Released: June 14, 2018