



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zhang, 2016 ONCA 473

DATE: 20160615

DOCKET: C60773 & C60774

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yong-Sheng Zhang and

Alltheway Trucking Inc.

Appellants

Vincenzo Rondinelli, for the appellant
    Zhang

Joseph Di Luca, for the appellant Alltheway Trucking
    Inc.

Demetrius Kappos and Paul Gonsalves, for the respondent

Heard:  May 31, 2016

On appeal from the decision of Justice Gregory J. Verbeem of
    the Superior Court of Justice, dated June 25, 2015, allowing in part the
    appeals from the convictions entered on September 15, 2013 and the sentences
    entered on January 16, 2014 by Justice of the Peace Maureen Ryan-Brode of the
    Ontario Court of Justice, with reasons reported at 2015 ONSC 4128.

ENDORSEMENT

[1]

This is an application for leave and, if leave is granted, an appeal
    from the decision of Verbeem J. sitting as a summary conviction appeal court,
    with reasons reported at 2015 ONSC 4128, allowing in part the appeals from the
    convictions and sentences entered on September 15, 2013 and January 16, 2014,
    respectively, by Justice of the Peace Maureen Ryan-Brode of the Ontario Court of
    Justice.

FACTS

[2]

On two separate occasions, a tractor trailer driven by the appellant Zhang
    entered Canada with shipments containing live invasive fish. Zhang and the
    trucking company, Alltheway Trucking Inc. (Alltheway), were each charged with
    two counts of possessing invasive fish without a licence contrary to s. 6(1) of
    the
Ontario Fishery Regulations
, 2007
, SOR/2007-237 (the
    Regulation), a strict liability offence under s. 78 of the
Fisheries Act
,
    R.S.C. 1985, c. F-14 (the Act). The potential harm that could result from the
    importation of these invasive species  as the record demonstrates  is
    enormous.

[3]

The Justice of the Peace convicted both appellants.  She found the
    identity of the corporate defendant was proven beyond a reasonable doubt and
    that the evidence showed, on a balance, that Zhang did not meet the statutory
    due diligence defence under s. 78.6 of the Act. She imposed fines of $2000 and
    $3000 in respect of Zhang and $30,000 and $40,000 in respect of Alltheway.

[4]

The summary conviction appeal judge (the appeal judge) allowed
    Alltheways appeal from conviction and ordered a new trial. He found that the
    Justice of the Peace erred in relying on the presence of counsel for Alltheway
    as evidence of identity. The appeal judge also allowed Zhangs appeal from
    sentence and varied the fine for the second offence to $2000 because the
    sentence below violated the Coke principle. He would have allowed Alltheways
    sentence appeal on the same basis.

[5]

Both appellants seek leave of this court to appeal the decision of the
    appeal judge.

ALLTHEWAY APPEAL

[6]

Alltheway submits that the appeal judge erred in failing to find that
    the decision of the Justice of the Peace constituted an unreasonable verdict.
    It argues that, rather than order a new trial, he ought to have set aside the
    conviction entered by the Justice of the Peace and ordered that an acquittal be
    entered in its place.

[7]

In a nutshell, Alltheways argument is that the appeal judge ought to
    have found that the evidence before the Justice of the Peace was insufficient
    to prove its identity beyond a reasonable doubt. Alltheway argues that the
    appeal judge committed an error of law in failing to consider and analyze the
    evidence through the lens of judicial experience as set out in
R. v.
    Biniaris
, 2000 SCC 15,
[2000]
    1 S.C.R. 381. Had he done so, he would have been required to find that the
    evidence in effect came up short. Instead, the appeal judge found that the
    Justice of the Peace had erred in law in considering the presence of counsel as
    a factor in the identification and ordered a new trial.

[8]

We do not accept this submission. In our view, read as a whole, the
    reasons of the appeal judge make it clear that he did not consider the verdict
    of the Justice of the Peace to be an unreasonable one.

[9]

He considered the evidence in relation to identity from paras. 65
    through 78 of his reasons. He concluded, at para. 78, that he was satisfied
    that there was evidence before the Justice of the Peace capable of supporting
    his finding that the Crown established the identity of the corporate Appellant.
    Although the appeal judge did not explicitly state that he rejected Alltheways
    argument that the verdict of the Justice of the Peace was unreasonable, it is
    implicit that he did so. We are not persuaded that he erred.

[10]

And while the issue of whether a verdict is unreasonable is a question
    of law, the real question posed by this appeal relates to the factual findings
    made by the trial justice and the sufficiency of the evidence in relation to
    identity.

[11]

The law in relation to whether a verdict is unreasonable is well-settled.
    In the context here, there is no issue raised of general importance beyond the
    particular facts of this case.

[12]

In the circumstances, we would deny leave to appeal.

ZHANG APPEAL

[13]

The appellant Zhang also seeks leave to appeal and submits that the
    appeal judge and the Justice of the Peace erred in assessing the evidence of
    due diligence under s. 78.6 of the Act.

[14]

We do not accept this submission. The reasons of the appeal judge and the
    Justice of the Peace demonstrate that they understood the test and applied it
    contextually.

[15]

The essence of the issue this appellant raises relates to the factual
    findings made by the Justice of the Peace after assessing the evidence before
    her in relation to the due diligence defence.

[16]

In our view, the issue raised in this context is one of mixed fact and
    law and, in any event, there is nothing raised here that is of concern beyond
    these parties.

[17]

We would deny leave to appeal.

J.
    MacFarland J.A.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.


