R. v. Wan

Between

Her Majesty the Queen, Plaintiff, and

Xi Wan, Defendant

[2011] O.J. No. 63XX

Ontario Court of Justice

Brampton, Ontario

R. Kelly J.

Oral judgment: November 25, 2011.

(50 paras.)

Charges: Section 267(b) and 264.1(1)(a) Criminal Code of Canada

Counsel:

A. Gauthier – Counsel for the Crown.

T. Pain – Counsel for the Accused.

1 R. KELLY J (orally):– This case first came before me on June 8th. Much of that day was occupied with an inquiry into the competency of the interpreter who had been assigned to the courtroom. The trial actually commenced on September 9th. It continued today with the cross-examination of Xi Wan and the submissions of counsel. After hearing from counsel, I retired for a couple of hours to review the evidence and consider counsel’s submissions.

2 It is important, in my view, that I give my reasons for judgement without any undue delay, so I deliver these oral reasons now.

3 Xi Wan is charged with assault causing bodily harm to Fred Wan. The two men are not related. For the sake of clarity, I will refer to each man using his first name.

4 In the fall of 2010, Fred hired Xi to do some renovation work in his home. On November 5th there was altercation.

5 It is the Crown’s theory, based on Fred’s evidence, that Xi snapped and attacked Fred, causing the injuries shown in the photographs, and that he also threatened to kill him. It is the defence’s theory that either Xi was acting in self-defense or that Fred consented to a fight.

6 Xi testified that he started to fight back after Fred punched and kicked him, and that the two men fought before falling on the ground.

7 The Crown bears the burden to prove guilt beyond a reasonable doubt. Xi is presumed innocent and bears no burden to prove anything. There is a basis in the evidence or “an air of reality” to a claim of self-defense under section 34(1)of the criminal code. The prosecution must disprove at least one element of this defense beyond a reasonable doubt. The Crown must also prove beyond a reasonable doubt that Fred did not consent to a physical fight with Xi.

8 In Canadian law, where adult “A” consents to fight with adult “B”, adult “B’s” application of force is not an assault because adult “A” consented to it. The criminal law does not recognize adult “A’s” consent as legally valid, however, where adult “B” both intended to and actually caused serious hurt or non-trivial bodily harm: see R vs. J.A, (2011) (S.C.C.) 28 at paragraphs 1-2-9 to 1-3-0 where the Supreme Court of Canada cites R. vs. Jobidon, J-0-B-I-D-O-N, (1991) 2 (S.C.R) 714 and vs. Paice, P-A-I-C-E, (2005) (S.C.C.) 22.

9 I pause here to note that during submissions about these decisions, I used the expression “grievous bodily harm.” That was a mistake. The expression “grievous bodily harm” appears in section 34 subsection (2) of the code. The term used in the consent case law is “actual bodily harm.” In other words, “actual” or “serious” or non-trivial bodily harm: see for example, Paice at paragraphs 11, 14 and 18.

10 If the whole of the evidence leaves a reasonable doubt about whether Xi was acting in self-defense, or about whether Fred consented to fight with him, Xi must be found not guilty.

11 Proof of probable guilt is not enough, I must be sure.

12 This is a two-witness credibility case.

13 It is important to emphasize that the rule of reasonable doubt applies to the issue of credibility. It is wrong to see the case as a credibility contest between Fred and Xi. That approach risks eroding the presumption of innocence and shifting the burden of proof. If Xi’s evidence leaves a reasonable doubt on the issue of either self-defense or common-law consent, even if I do not believe his testimony, he must be acquitted. Even if I reject Xi’s evidence, I must still ask whether, on the evidence I accept, I am convinced beyond a reasonable doubt that Xi was not acting in self-defense and that Fred did not consent to a physical fight with Xi.

14 Each witness is entitled to a fair and even-handed assessment of his testimony, based on logic, common sense, and every day human experience. Each person’s evidence must be evaluated not in isolation, but in light of the whole of the evidence. I can accept some, none, or all of the evidence of either witness. The case for the Crown and the defense must be subjected to the same level of scrutiny. Fairness and balance are essential. I will now give an overview of the evidence.

15 Xi does home renovations. In the fall of 2010, Fred hired him to install hardwood flooring and new stairs in his home. He got his name from a mutual friend, Ms. Lee. At the time, Xi had been doing renovation work for about three and a half years. Before this, he worked as a lab technician. In China, he was a Civil Engineer. Two witnesses described him as having a very good reputation for honesty, and peaceable behavior.

16 The agreed upon price for the job was $4,300. The witnesses differed, however, about the schedule of payment. According to Fred, he was to pay for materials as they were needed and he did pay $1,300 but he was not required to pay for any labour until all the work was done. On Xi’s evidence, Fred was to pay $1,300 up front for materials, $1,500 when the floors were done, and the remaining $1500 when the stairs were completed.

17 Xi started work in October 2010. Fred testified that as the job progressed, he was not happy with Xi’s work. He felt that Xi was unqualified and, to put it bluntly, did not know what he was doing. Although Fred said there was not much animosity between them, he acknowledged that they had their differences of opinion. He didn’t hesitate to tell Xi if he thought something he had done was not right. According to Xi, while Fred may have raised some minor concerns about details, neither he nor his wife expressed any significant dissatisfaction with his work. Fred also described one conversation in which Xi “threatened” him. According to Fred, the two men were talking one evening. Xi started going on about how it was “not an easy thing” for Fred, “a new immigrant”, to have studied a long time and then become a nurse. Fred took Xi to be referring to the fact that Fred had a nicer house and lived a better life than Xi. Fred understood what Xi was saying as a threat as opposed to an insult. He said “his tone might have been threatening” and he added that their Chinese culture may have had something to do with his perception. Fred called Ms. Lee right away and asked her to talk to Xi, and Xi spoke with Ms. Lee on the phone.

18 One of the things that bothered Fred was the fact that Xi would work for a time and then stop. At one point, for example, he simply packed up his tools and left. As a result, Fred called Ms. Lee and complained Xi eventually returned.

19 In his testimony, Xi gave an explanation for his departure. He said that on November 2nd, he asked for the third time for payment of the first of the two $1,500 installments, since by that time he had finished most of the work. When he was put off, yet again, he decided to take his tools and leave. Later that night, Ms. Lee called him and convinced him to return, which he did on November 3rd.

20 Another concern for Fred, were some holes in the floor around the stairs from where the railings had been removed. According to him, these were large screw holes. It is obvious they bothered him. Xi did not seem too concerned about these holes, which also frustrated Fred. It was these screw holes, and Fred’s efforts to cover them up, that eventually led to the altercation and the charges.

21 I am going to pause here, for a moment, to say this: the evidence of Fred and Xi, taken as a whole, leaves me with the sense that there was a growing tension between the two men in the time leading up to the incident. Fred, in my assessment, was becoming increasingly frustrated with Xi, whom he felt was dilatory, careless, and incompetent. And Xi, in my assessment, may well have been becoming increasingly frustrated with Fred, whom he felt was being unreasonably picky and demanding, and who was not paying his bills. I will return to this later in my assessment of the evidence.

22 Returning to the chronology, in early November 2010, Xi was putting the final touches on the project. Although the witnesses diverged somewhat on exactly what still needed to be done, they generally agreed that around this time, Xi was staining the stairs and doing some touch-up work. This included filling the screw holes with putty and then staining the putty so it would be the same colour of the stairs. The goal, of course, was to have the holes blend in with the wood so no one would notice them. But Fred noticed them.

23 Around three or four in the afternoon of November 5th, Xi was working at the house. On Fred’s evidence, he had called Xi earlier in the day and told him he had used the wrong colour of putty. When the discussion continued at the house, Xi told Fred there was no other colour available. It was Fred’s impression that Xi thought the putty issue was not a big deal. On Xi’s version, when Fred was not happy with the colour the putty, he, Xi, spent about half an hour restaining the putty to make it darker so it would blend in with the surrounding wood. Fred denied this.

24 There is no real dispute about the fact that during the disagreement over the putty issue, Fred spoke by phone with Ms. Lee. According to Fred, he went downstairs and called their mutual friend. Ms. Lee told Fred there were other colours of putty available at the Home Depot and that Xi was trying to cheat him. Bin then went back upstairs and told Xi what Ms. Lee had said. This, he testified, made Xi angry, and Xi yelled, “Have her come over here, and I’ll talk to her.” To this Fred responded with something like, “Fine, I’ll go and buy the putty myself.” He maintained that he said this in a soft tone because he sensed Xi was losing control. Although there had, up to that point, been no significant animosity or anything physical between them, Fred sensed an incident “like this” would happen, given previous conversations, including the one in which then had “threatened” him.

25 Xi testified that when Fred told him Ms. Lee had said there were other colours of putty, he told Fred to have Ms. Lee come over, and he added that if she could make the putty on the staircase the same colour, he, Xi, would deduct the appropriate amount from his bill to Fred. It was at this point that things turned physical, and it is here that the accounts of the two witnesses diverged sharply.

26 On Fred’s version, when he told then what Ms. Lee had said, Xi snapped. Fred was near the bedroom door and was about to go downstairs, Xi grabbed his neck and punched him in the head, causing his head and body to hit the bedroom wall. Later in his evidence, he said, “a wall was cracked.” Fred fell to the floor in the bedroom. Xi sat on top of him and punched him in the head and face with both fists. He also kicked him in the face and head with both feet; then he climbed on top of him, and again, hit him with both fists. After what seemed to Fred like a very long time, Xi put both hands around his neck and he started ‘choking him. He told him, “If you don’t allow me to live” (in other words if you cause me trouble) “I’ll kill you.” He also said, “I’ll kill you, I’ll fuck your mother.”

27 Fred was having problems breathing. At one point, Xi asked, “What are you going to do, call the police? If you call the police or if I kill you I will go to jail.” Fred was very scared. He felt sure Xi would kill him. He told him he wouldn’t call the police.

28 Xi’s version is different. He testified that after Fred called Ms. Lee, they started arguing. The discussion moved from the colour of the putty to whether Fred was going to pay Xi for all the work he had done. Xi’s position was that if Fred didn’t want him to finish the job, he wouldn’t, but that he should still be paid $1,500 for the work he had done on the floor. Fred refused to pay, saying that Xi hadn’t finished the job and suggesting that what he had done was unsatisfactory. At one point, Xi said something like, “Even if a beggar came to you, you wouldn’t pay him.” Fred’s face turned red and he became very emotional. He called Xi a cheater and said he did not need Xi to “agitate” him. Xi, who had been working on changing the colour of the putty, was standing at the top of the stairs near the railing, Fred punched him saying, “Get out you cheater; do I need to be taught by you?”

29 Xi’s back hit the railing and he went to the ground. If it hadn’t been for the railing, he would have fallen down the stairs at the foot of which where his tools. Fred also kicked Xi twice. This is when Xi fought back, stepping forward so he wouldn’t fall down the stain. Xi blocked Fred with his fist. He also held his neck and pushed him back in an effort to control him. During this time, Fred was hitting Xi’s arms, so Xi fought back by punching. Fred called Xi “a cheater” and said “he stole people’s money.” Xi retorted “Fuck you. You’re not paying me, you’re beating me.” The fight continued. Fred was hitting Xi in the area of the forearms with his fist and Xi was punching Fred. In-chief, Xi testified that he punched Fred in the head with his left fist and then hit him twice with his right fist before striking him two more times with his left fist. Concerned that he might fall down the stairs, Xi tried to move forward, Fred grabbed him by the waist. Xi squatted down to try and push Fred forward, and he also hit him a couple of times.

30 The two men struggled and then both fell to the ground. There was an exchange of insults, and the fight stopped. Both men were tired. Xi stood up. He testified that he felt pain in his arm and leg muscles, but he was not bleeding. He saw a little bit of blood on the edge of Fred’s mouth. Xi went downstairs. His mind was blank. He knew he couldn’t continue the job after what had just happened. He gathered some of his tools and left. Fred testified that when he said he wouldn’t call the police, Xi got up and then he, Fred, ran from the second floor downstairs and outside to the home of his neighbors a few houses away. He asked them for help and, seeing that he was bleeding badly from the nose and mouth, his neighbor called 9-1-1. Fred hid in his neighbors’s garage. He was scared Xi was going to kill him. He stayed there until he saw Constable Grove, G-R-O-V-E, drive by.

31 Fred sustained bruising, cuts, and other marks to his face and head, including in the areas of his eyes, forehead, cheeks, mouth, and neck. (See exhibits 1(a) to 1(f). He also’ had swelling to his hands. He had daily headaches and went for two C.T. scans. For two or three months, he experienced severe ringing and pain in his ear. He still experiences some ringing, although it is less severe. Fred testified that he took no aggressive physical action towards Xi. Much of the time, he was in a fetal position. All he did, he testified, was cover his head with both hands during the attack.

32 This, he believed, is how his hands became swollen.

33 I turn now to my assessment of the evidence. The evidence in this case covers a period of about a few weeks, one year ago, when Fred hired Xi to do some work on his home. The testimony of each man covered numerous factual issues. On some of these, the witnesses were in agreement; on others, they differed. It is impossible to resolve every single factual issue and to fully grasp all of the subtleties and complexities of the relationship that developed between these two men in the time leading up to the incident; nor is that my task. My task is to assess the evidence as a whole and to determine whether the Crown has proven the essential ingredients of each charge beyond a reasonable doubt.

34 At a general level, I will return to what I said earlier. The record leaves me with the fairly strong impression that there was mounting tension between the two men. As I said earlier, Fred saw Xi as incompetent and was unhappy with his work. He didn’t hesitate to tell Xi about this.

35 Xi saw Fred as a difficult customer to say the least. The evidence leads one with the sense that each men was growing increasingly frustrated with the other. It may be, as Ms. Gauthier submitted, that in his testimony, Xi was making some effort to minimize Fred’s dissatisfaction with his work and the growing tension between them. I wondered frankly, whether I was sensing this too.

36 But, in the overall credibility assessment, I would not over-emphasize the significance of this factor. It is, however, one factor that I have taken into account in assessing Xi’s evidence.

37 And turning to Xi’s testimony, his account of the entire relationship, and in particular the altercation itself, flowed naturally, and was quite rich in detail. His testimony during cross-examination today was consistent (even on some very small details) with his testimony on the first day of trial about two and a half months ago.

38 As Ms. Gauthier, with her usual fair, and even handed approach, acknowledged, some of Xi’s testimony was candid and forthright to a degree that is almost striking. In-chief, he had no difficulty admitting to his own acts: swearing at Fred, grabbing him by the neck, punching him multiple times, etc.

39 Today, Xi freely admitted that he was angry when Fred refused to pay him. And while he testified that he, “self-defended” by hitting Fred back, he acknowledged, with little prodding, if any, from Crown Counsel, that he “could not accept” being hit by Fred, and that he felt that since Fred had hit him, he could hit Fred back to make things even. This is not entirely different from his evidence-in-chief, when his evidence-in-chief is examined closely.

40 In terms of demeanor, which should never be over-emphasized, Xi struck me as thoughtful, precise, and possibly even a ponderous witness. While there were a number of times he asked for questions to be repeated, I cannot say he was evasive. It seems he wanted to make sure he understood the question before answering it. And there were a couple of moments where I perceived some genuine misunderstanding.

41 In assessing Xi’s evidence, I have taken into account the fact that he sustained no visible injuries, while Fred, a smaller man, had a number of marks in the area of his face as well as a swollen hand. I have also considered the fact that Fred fled from his own home and essentially hid in the garage of a neighbour, who called 9-1-1. This raises some suspicion in my mind about Fred’s version.

42 I will now make some comments about Fred’s evidence. Fred’s narrative, in my view, also flowed in a natural way, and was held together by details that gave it a common sense coherence. Fred struck me as a respectful, a fairly mild mannered person. His dissatisfaction with Xi’s work and eventual dislike for Xi came through loud and clear.

43 But, his ultimate feelings towards Xi are perhaps not too surprising in all the circumstances. Fred was not evasive or argumentative in cross-examination, nor was he confronted with any prior inconsistent statements. Fred’s evidence also finds some support, in my assessment, in the photographs of his injuries, contrasted with the absence of any visible injuries to Xi, as well as in the fact that he fled in his own home and hid in the neighbour’s garage. His act of flight tends to support his claim that Xi attacked him and threatened his life. Finally, I will address an issue that both counsel touched on in varying degrees during their submissions, and that is the issue of the plausibility of each person’s account of how the physical altercation started.

44 Mr. Pain submitted that the heart of Fred’s version is implausible. It is simply not plausible, he contended, that during an argument over the colour of putty used to cover some screw holes, Xi, a man with a reputation for peaceable behavior, would snap and launch an all out beating, with fists and feet, on Fred, the man who was supposed to pay him for all the work he had done on the very day he was supposed to get paid. If there was one way to ensure he did not get paid, Mr. Pain would say, it was by attacking his employer.

45 Having considered the evidence as a whole, I must say that I am left with some questions about the plausibility of Fred’s evidence that out of nowhere during this argument over putty, and without any provocation, Xi started punching and kicking and choking Fred and threatened to kill him.

46 Ms. Gauthier, made submissions that I perceived as somewhat similar with respect to Xi’s account. Ms. Gauthier submitted that the suggestion that Fred wanted Xi to leave the house makes no sense; rather, Fred would have wanted him to stay to finish the job properly. In addition, Ms. Gauthier contended, Fred had no motive to throw that first punch, and, put another way, Xi’s evidence that Fred attacked him by punching and kicking him stretches plausibility beyond the point of reasonableness.

47 Having considered all of the evidence, and having observed Fred, I cannot say that I disagree with this submission. In short, the plausibility of each witness’ evidence on the ore factual issue, namely, the issue of how this altercation started, may be open to question.

48 I turn to my conclusions. This is a case where, after considering the evidence in its entirety, I find that there are things to be said in favor of each witness’ credibility. And there are also some questions that linger about each version. I am not saying I disbelieve Fred’s account, nor am I saying I believe Xi’s version. As I said at the outset, this is not a credibility contest; the issue is not who I believe.

49 While the evidence as a whole leaves me suspicious perhaps even highly suspicious, that Xi assaulted and threatened Fred in the way Fred described, I am left with a reasonable doubt about whether or not.

a) Fred consented to a physical fight with Xi and;

b) Xi both caused and intended to cause bodily harm to Fred.

50 On the whole of the evidence, therefore, I am not sure of Xi’s guilt. He is entitled to the benefit of my reasonable doubt on the issue of absence of consent. I find him not guilty of the charges. I thank both counsel.

Read Xi’s testimonial

The Court stated that a trial judge is not bound by a joint submission but rather must concern itself with the imposition of a fit sentence.  It went on to state that trial judges, however, must give considerable weight to a joint submission.  A trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or was otherwise not in the public interest.  A sentencing judge should give effect to the need for certainty in agreed upon resolutions but the need for certainty must give way where “the harm caused by accepting the joint submission is beyond the value gained” by promoting the concept of certainty.

Where a judge is considering imposing a higher sentence than the joint submission being put forth, concerns about fairness to the accused arise in that the accused has forgone his right to a trial, expecting a certain outcome.  This is the main factor that must be considered when a judge is determining whether a joint submission is so low as to bring the administration of justice into disrepute.

Where a judge is contemplating imposing a lower sentence than the joint submission being put forth, concerns about the “community’s reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission” must be factored into the analysis.  As an example, the Court states, “Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps for example escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain.”

Ultimately, the Court of Appeal found that the trial judge had committed an error in principle in the way he jumped the joint submission but it upheld the sentence, nonetheless.  Among the factors it considered in deciding to uphold the sentence were:

• The Crown did not lead any evidence about any specific harm caused by the importation of khat
• There was no evidence that the accused knew that importation of khat was illegal
• There was no evidence that the respondent was involved in any kind of a commercial enterprise
• The accused was a young first time offender with a promising future

The obligations under the PCMLTFA relate to reporting requirements (related to suspicious transactions, terrorist property, and large cash transactions), record keeping, ascertaining identity, third party determination, and compliance regimes.

Failure to meet one’s obligations under the PCMLTFA can lead to administrative penalties or criminal sanctions.  Violations under the Act are categorized as minor, serious, and very serious.  For a minor violation the maximum penalty is $1000.  For a serious violation, the maximum penalty is $100,000.  For a very serious penalty, the maximum violation is $100, 000 for an individual and up to $500,000 for an entity, such as a brokerage.  The determining factors for assessing a penalty are (i) the harm caused by the violation, (ii) the compliance history of the reporting entity, and (iii) the non-punitive, compliance-encouraging objectives of the PCMLTFA.

Criminal penalties are a possibility as well, with a maximum of up to 5 years in jail and fines that can climb into the millions of dollars, depending on the nature of the violation(s).

The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC – the government agency responsible for enforcing the PCMLTFA) has had the ability to levy monetary penalties since December 30, 2008, but it maintains that it is committed to working with reporting entities to ensure compliance with the Act and that monetary penalties are used as a last resort only after other measures to ensure compliance have proven ineffective.

However, on March 3, 2010, FINTRAC published (publication on the FINTRAC website:  another form of punishment that can have devastating consequences to a business) the first fine it had assessed against a real estate brokerage.  HomeLife Effect Realty in Hamilton was fined $27,000 for being in violation of the PCMLTFA.  FINTRAC found that the brokerage had committed four violations:  (i) failure to appoint a person to be responsible for the implementation of a compliance program, (ii) failure to develop and apply written compliance policies and procedures, (iii) failure to assess and document risk and, (iv) failure to develop and maintain a written ongoing compliance training program.

The obligations under the PCMLTFA are real, FINTRAC is real, and the penalties it is starting to levy are very real.  Make sure you are prepared!

“Hi Tushar, it’s Frank at 9:00 o’clock in the morning or ten after.  I just wanted to tell you that I can’t thank you enough.  Umm, life changing.  Absolutely, last evening was one of the nicest evenings Carrie and I have ever had together and we have you to thank for that.  So, I cannot thank you enough.  I’m really looking forward to some time in the very near future to take you and your lovely wife out for a nice Saturday night dinner and we’ll coordinate that.  So, once again, Tushar, you’ve made a huge positive impact on my life and I cannot thank you enough.  So you have a wonderful weekend with your family and I look forward to it.  Talk to you again real soon.  Take care, my friend.  Bye now.”

A youth record is basically a history of information kept either for a purpose stated in the YCJA or for investigating offences that could potentially be prosecuted under the YCJA.  Youth records can contain a variety of information including a history of sentences, findings of guilt, charges, and even arrests.

Once a youth record is created, there is a period during which it can be accessed by certain prescribed individuals or parties.  At this stage a youth record is considered ‘open’.  Once the access period passes, the youth record is considered ‘closed’.

As an example, if a young person commits a second criminal offence before his record for his first is closed, this will increase the time period during which the original record will stay open.  If the young person is under 18 at the time he commits the second offence, the record for the first offence will stay open for the same duration as the record for the second offence.  If the young person is over 18 at the time the second offence is committed, then the record for the first offence (as a young person under the YCJA) becomes a permanent part of that person’s (now) adult record.

So when does a youth record go away, if at all?

If a young person is acquitted, or the charges are withdrawn or dismissed or the young person receives a reprimand (as defined under the YCJA) after being found guilty, then the youth record will be sealed or destroyed after two months.  If a young person has a charge stayed or receives an absolute discharge, then the time period is one year.  If the young person participates in an extrajudicial sanction (as defined in the YCJA), then the period is two years after the young person agreed to participate in the program.  If a young person receives a conditional discharge, then the time period is three years from the date of being found guilty.  For summary conviction offences where the sentence received is greater than a conditional discharge, the waiting period is three years after the sentence is completed.  For an indictable offence, the waiting period is five years after the sentence is completed.  If a young person is found ‘not guilty’ by reason of a mental disorder, then the record may stay open indefinitely.  For certain serious offences such as murder, manslaughter, attempted murder, aggravated sexual assault or repeated violent offences, again the record may stay open indefinitely.  For other types of serious violent offences, the youth record will stay open for an additional five years beyond the regular applicable period.  If a young person receives an adult sentence, that youth record will become a permanent part of that young person’s adult record.    Again, keep in mind that committing subsequent crimes either before or after the age of 18 will impact the period during which the original youth record stays open.

If a youth record becomes part of an adult record, then it will be necessary to apply for a Pardon.