



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Li, 2017 ONCA 509

DATE: 20170619

DOCKET: C62687

Rouleau, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chun Mei Li

Appellant

Chun Mei Li, in person

Scott Latimer, for the respondent

Paula Rochman,
amicus curiae

Heard: May 19, 2017

On appeal from the conviction entered by Justice Anne
    Molloy of the Superior Court of Justice, sitting with jury, on January 12, 2016,
    and from the sentence imposed on July 5, 2016, with reasons reported at 2016
    ONSC 4406.

Trotter J.A.:

A.

overview

[1]

Chun Mei Li and Seyed Rezadoust had a child together  a girl, known in
    these proceedings as M. In December of 2010, when M. was seven years old, Ms.
    Li took her to China. Ms. Li returned to Canada without M. To this day, M.s
    whereabouts are unknown because Ms. Li refuses to tell anyone where she is.

[2]

Ms. Li was convicted of child abduction, contrary to s. 282 of the
Criminal
    Code
, R.S.C. 1985, c. C-46. She was sentenced to seven years
    imprisonment, less some credit for pre-sentence custody (PSC). She appeals
    against both her conviction and sentence. For the reasons that follow, the appeal
    from conviction is dismissed. The sentence appeal is allowed, but only as it
    relates to credit for PSC.

B.

the facts

(1)

Introduction

[3]

Ms. Li and Mr. Rezadoust were in a common law relationship when M. was
    born. They separated, but Mr. Rezadoust was actively involved in M.s life.
    Arrangements to care for M. seemed to have worked satisfactorily until a
    dispute arose about Mr. Rezadoust taking on a greater caregiving role to
    accommodate Ms. Lis newly altered work schedule. When Mr. Rezadoust failed to
    react as rapidly as suited Ms. Li, the events leading to this case unfolded.

[4]

In December of 2010, without Mr. Rezadousts knowledge, Ms. Li took M.
    to China, where Ms. Li was born, and where she still had family. Ms. Li returned
    to Canada without M. on February 2, 2011. When Mr. Rezadoust found out a few
    days later, he reported the matter to the police. Ms. Li responded by making
    allegations that Mr. Rezadoust had assaulted and threatened to kill her and M.
    Mr. Rezadoust was charged with multiple criminal offences.

(2)

The Family Court Proceedings

[5]

Ms. Li soon commenced proceedings in the Ontario Court of Justice (the Family
    Court) to obtain custody of M. At the time, she swore that M. was living in
    China with her grandparents and uncle. On April 11, 2011, Waldman J. ordered Ms.
    Li to return M. to Canada by April 30, 2011. She also made an interim order
    granting custody to Ms. Li, with no access to Mr. Rezadoust.

[6]

Ms. Li did not return M. to Canada. Mr. Rezadoust applied to have Ms. Li
    found in contempt. Ms. Li then made further allegations of criminality against Mr.
    Rezadoust, leading to more criminal charges.

[7]

On June 3, 2011, Waldman J. found Ms. Li to be in contempt of the
    previous order to return M. to Canada. She determined that 60 days
    imprisonment would be an appropriate sanction. However, Waldman J. adjourned
    the proceedings until July 21, 2011 to provide Ms. Li with an opportunity to
    return M. to Canada. That date came and went, with Ms. Li failing to attend
    court and failing to return M. to Canada. Consequently, Mr. Rezadoust was
    granted sole custody of M.

[8]

In the meantime, the charges against Mr. Rezadoust proceeded in the
    Ontario Court of Justice. When Ms. Li failed to attend court for the
    preliminary inquiry on March 12, 2012, the Crown stayed all charges.

[9]

Ms. Li was arrested on October 2013 and began serving her sentence for
    contempt. She appeared in Family Court again on December 18, 2013. She entered
    into an agreement with Mr. Rezadoust to make reasonable efforts to have M.
    returned to Toronto by January 20, 2014. She failed to honour this agreement
    and provided a good deal of false information about those who were taking care
    of M. Ms. Li was found in contempt again and sentenced to an additional 45 days
    in custody.

C.

The criminal proceedings

(1)

Proceedings Leading Up to the Trial

[10]

Ms. Li was charged with child abduction, contrary to s. 282 of the
Criminal
    Code
, and three counts of disobeying a court order (s. 127).

[11]

While her case was in the Ontario Court of Justice, Ms. Li had retained
    and discharged counsel twice. Legal Aid Ontario refused to permit her to hire a
    third lawyer. Counsel was appointed as
amicus curiae
.

[12]

Justice Fergus ODonnell of the Ontario Court of Justice managed the
    case. On his own motion, he ordered a fitness assessment of Ms. Li. A
    psychiatric report was prepared by Dr. Brian Day. He was of the opinion Ms. Li
    was unfit to stand trial. Justice ODonnell did not accept Dr. Dalys opinion
    and the fitness issue was not pursued further.

[13]

When Ms. Li appeared in court on June 4, 2015, she refused to answer any
    questions and declared that the proceedings against her were illegal, and that
    Mr. Rezadoust was a terrorist. She refused to elect a mode of trial. Further to
    ss. 536(4) and 565(1)(b) of the
Criminal Code
, Ms. Li was deemed to
    have elected trial by judge and jury. Given that neither Ms. Li nor the Crown
    requested a preliminary inquiry, Ms. Li was committed to stand trial in the
    Superior Court of Justice.

[14]

Ms. Li made her first appearance in the Superior Court on June 25, 2015.
    Justice John McMahon managed the case. Ms. Li repeatedly delayed the proceedings
    with disclosure requests and refused to retain a lawyer. Ultimately,
amicus
    curiae
was appointed, and Ms. Paula Rochman was to conduct the
    cross-examination of Mr. Rezadoust, pursuant to ss. 486.3(3) and (4) of the
Criminal
    Code
.


[15]

During his management of the case, McMahon J. expressed concern with Ms.
    Lis fitness. This was based largely on Ms. Lis repeated references to a
    conspiracy against her involving Mr. Rezadoust. McMahon J. also had access to Dr.
    Days report. Having inquired into the matter, and recognizing that Ms. Li
    faced some mental health challenges, McMahon J. nevertheless concluded that Ms.
    Li met the test for fitness set out in
R. v. Taylor
(1993), 11 O.R.
    (3d) 323 (C.A.).

(2)

The Trial

[16]

Ms. Lis trial commenced on January 4, 2016 on a single count under s.
    282 of the
Criminal Code
. The trial proved to be very challenging. In
    a decision released after trial, the trial judge explained her various
    pre-trial and mid-trial rulings:
R. v. C.M.L.
,

2016 ONSC 5332.
    Of importance, Ms. Li initially refused to participate in the trial. She then became
    very disruptive. As the trial judge said in paras. 36 and 37 of her reasons:

She refused to behave appropriately in the courtroom and
    persisted in making
ad hominen
comments about the Crown and the
amicus
and Mr. R. She was belligerent and could not be controlled. When others tried
    to talk, she simply talked over them. She was loud and abusive. It was
    virtually impossible for anyone else to be heard.

I warned Ms. L. several times that if she did not behave
    appropriately, I would have no choice but to remove her from the courtroom and
    she could watch the trial proceedings by live video-stream. This had no effect
    on her conduct.

[17]

Ultimately, Ms. Li was excluded from the courtroom for large portions of
    her trial under s. 650(2) of the
Code
and viewed the proceedings via
    closed-circuit television.

[18]

The Crowns case at trial consisted of the Family Court orders, as well
    as the testimony of a police officer and Mr. Rezadoust. No defence evidence was
    called. The jury found Ms. Li guilty on the single-count indictment.

(3)

The Sentencing Proceedings

[19]

At the outset of the sentencing proceedings, the Crown at trial (not Mr.
    Latimer) raised the issue of criminal responsibility under s. 16 of the
Criminal
    Code
. After a lengthy discussion with the Crown and
amicus
, the
    trial judge ordered an assessment under the
Mental Health Act
, R.S.O. 1990,
    c. M.7, but not for the purposes of s. 16; the order was premised on gathering
    evidence of Ms. Lis mental state for sentencing purposes, as well as her
    fitness.

[20]

Dr. Karen De Freitas conducted the assessment. Because Ms. Li refused to
    participate, Dr. De Freitas relied upon court transcripts and the input of
    counsel. Dr. De Freitas concluded that Ms. Li was unfit to proceed to
    sentencing.

[21]

The trial judge did not embark upon a formal fitness hearing. She
    recognized that Ms. Li suffered from mental illness and endorsed certain
    delusions. However, after reviewing Dr. De Freitas report, in the context of
    Ms. Lis conduct throughout the trial, the trial judge concluded that there
    were no reasonable grounds to believe that Ms. Li was unfit to stand trial. She
    concluded that Ms. Lis behaviour was intentional and likely tactical. The
    trial judge provided very detailed and careful reasons for her decision: see
R.
    v. C.M.L.
, 2016 ONSC 5499.

[22]

The trial judge sentenced Ms. Li to seven years imprisonment. Again,
    she gave detailed and extensive reasons: see
R. v. C.M.L.
, 2016 ONSC
    4406. In reaching her conclusion on the quantum of sentence, the trial judge
    was heavily influenced by the failure of Ms. Li to arrange M.s return to
    Canada. As she said at para. 53:


In light of all of the circumstances, the most
    significant aggravating circumstance being the continued absence of the child
    with no knowledge of her safety and well-being, in my view seven years is an
    appropriate sentence for this offender and this offence.

[23]

When Ms. Li was sentenced, she had been in custody for 982 days. The
    Crown submitted that she should receive credit on a 1.5:1 basis. The trial
    judge disagreed. As she said at para. 54 of her reasons:

Ms. [Li] is entitled to credit for the time
    she has already served. Assuming Ms. [Li] was telling the truth that she left M
    with her parents in China, it has always been within her ability to provide
    proper contact information so that M's well-being could be confirmed. Her
    continued stubborn refusal to provide this information means that every single
    day she has been in custody she has been continuing to hide this child from her
    father. I have a discretion as to whether an enhanced credit of 1.5:1 is
    appropriate. In these circumstances, I find that it is not. I am allowing the
    credit only on a straight 1:1 basis. [Footnote omitted]

[24]

The trial judge deducted 120 days
[1]
attributable to Ms. Lis
    contempt sentences, and credited her with 862 days, or 28.3 months, for PSC,
    which she rounded up to 29 months. She calculated the remaining time to be
    served as four years and seven months.

[25]

In concluding her reasons, the trial judge once
    again mentioned the ongoing nature of the offence and made the following
    comments at para. 56:

It is not up to me to decide when, or if, Ms. [Li]
    should be released on parole. However, I do have a recommendation which I would
    urge upon the authorities. In my view, as long as Ms. [Li] persists in
    concealing the whereabouts of her daughter, she should serve every day of her
    sentence. On the other hand, if at any time Ms. [Li] does provide accurate
    information as to the whereabouts of her daughter and signs the necessary
    consents to have M returned to Canada, I would consider that to warrant her
    early release.

D.

the appeal

[26]

Ms. Li filed her own Notice of Appeal on August 2, 2016, raising 14
    grounds of appeal. On August 24, 2016, Ms. Rochman filed a solicitors Notice
    of Appeal.

[27]

During an appearance before this court on March 6, 2017, Ms. Li
    maintained that she had never retained Ms. Rochman, wished to argue her own
    appeal, and objected to Ms. Rochmans further involvement in the case.
    Consequently, Ms. Rochman was removed from the record as counsel, but appointed
    as
amicus
.

[28]

In deciding this case, I have considered all grounds of appeal  those
    raised by Ms. Li, as well as those advanced by Ms. Rochman. I am not persuaded
    that any of the grounds of appeal against conviction should succeed. However,
    the sentence appeal must be allowed in part.

(1)

Grounds of Appeal Raised by Ms. Li

[29]

In her main Notice of Appeal, Ms. Li challenges the legality of the
    criminal proceedings. She pursues her theme about Mr. Rezadoust being a terrorist.
    Ms. Li also alleges perjury, judicial misconduct, obstruction of justice and a
    miscarriage of justice. In further correspondence forwarded to the court, Ms.
    Li elaborates on these grounds in more detail.

[30]

There is no merit in any of Ms. Lis claims that the proceedings, either
    in the Family Court, or before the trial judge, were tainted with illegality. There
    is no foundation for the allegation of perjury. There is no substance to any of
    the allegations of impropriety or misconduct on the part of any of the judges
    or lawyers involved in this case.

[31]

The experienced trial judge conducted this difficult jury trial with
    exemplary fairness. Ms. Li persisted in her attempts to frustrate the proceedings,
    both leading up to the trial, and after it began. Because of Ms. Lis
    disruptions, the trial judge had no realistic option but to exclude her from
    the courtroom. This step was not taken lightly. The trial judges reasons for
    taking this course of action are fully justified in her post-trial reasons for ruling,
    discussed above.

[32]

The evidence overwhelmingly established Ms. Lis guilt for the offence
    under s. 282 of the
Criminal Code
. In the absence of any evidence to
    the contrary, it cannot be said that the jurys verdict was unreasonable.

[33]

In conclusion, I find no merit in any of the grounds of appeal raised by
    Ms. Li. She received a fair trial at which her guilt was established beyond a
    reasonable doubt.

(2)

The Fitness Issue

[34]

Ms. Rochman argues that, on a review of Ms. Lis conduct throughout the
    trial, Ms. Lis fitness was clearly in issue. She argues that the trial judge
    ought to have embarked on a fitness hearing under s. 672.23. I disagree.

[35]

Focusing on the trial as a whole, Ms. Rochman argues that the issue of
    fitness should have been addressed before verdict, when Ms. Lis conduct was
    already problematic. However, the issue never really crystallized before the
    trial judge until the Crown at trial requested a psychiatric assessment after
    the jury rendered its verdict.

[36]

Section 672.23(1) provides jurisdiction to conduct a fitness hearing
    before a verdict is rendered. Given my conclusion that the trial judge did
    not err in failing to conduct a formal fitness hearing, I need not consider
    whether there is jurisdiction to embark upon a fitness hearing after verdict.
    This issue has arisen in a number of trial decisions: see
R. v. Jaser
,
    2015 ONSC 4729;
R. v. Nehass
, 2016 YKSC 63; and
R. v. Morrison
,
    2016 SKQB 259, 31 C.R. (7th) 362. This jurisdictional issue was not argued in
    this case. I express no view on the matter.

[37]

Returning to the facts of this case, there were a number of occasions
    during the entirety of criminal proceedings when Ms. Lis potential unfitness
    surfaced. Every time the issue arose, the very experienced presiding judges (
i.e.
,
    ODonnell J., McMahon J., and the trial judge) properly inquired into the
    matter, short of embarking on formal fitness hearings.

[38]

As I note above, the trial judge provided extensive reasons for her
    decision not to conduct a fitness hearing. She applied the governing test for fitness
    to stand trial established in
Taylor
, and confirmed in
R. v.
    Morrissey
, 2007 ONCA 770, 87 O.R. (3d) 481, leave to appeal refused,
    [2008] S.C.C.A. No. 102. The trial judge acknowledged the presence of some
    disordered thinking on Ms. Lis part; however, she concluded that Ms. Lis was
    still fit to stand trial. The trial judge was in the best position to make both
    this determination, and whether the threshold for embarking on a fitness
    hearing had been established. I can find no error in her analysis and would
    reject this ground of appeal.

(3)

The Appeal Against Sentence

[39]

Ms. Li and Ms. Rochman submit that the sentence imposed was
    unfit. Ms. Rochman also argues that the trial judge erred by refusing to grant
    credit for PSC on a 1.5:1 basis. Mr. Latimer for the Crown argues that the
    sentence is fit and that the trial judge properly exercised her discretion in
    relation to PSC.

[40]

I am not persuaded that, in the circumstances of
    this case, the trial judge erred in imposing a sentence of seven years
    imprisonment. The trial judge found that the harm caused by Ms. Lis actions,
    when combined with her very high degree of moral blameworthiness, warranted a
    sentence that was more severe than in comparable cases. This was not an error.
    As Wagner J. wrote in
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11:

The fact that a judge deviates from the proper
    sentencing range does not in itself justify appellate intervention. Ultimately,
    except where a sentencing judge makes an error of law or an error in principle
    that has an impact on the sentence, an appellate court may not vary the
    sentence unless it is demonstrably unfit.

[41]

The trial judge made careful findings of fact,
    to which she applied the applicable principles of sentencing. She recognized
    that Ms. Lis cruel and reprehensible conduct has deprived M. of a life with
    her father. The crime is ongoing. Not only has Mr. Rezadoust been deprived of
    the right to parent his own child, he has been completely excluded from M.s
    life. He does not know where she is in the world, whether she is well, or
    whether she wishes to have contact with him. This case calls out for a sentence
    that emphasizes the objectives of denunciation and general deterrence: see
R.
    v. Pasdari
, [2003] O.J. No. 319 (C.A.); and
R.
    v. Mendez
(1997)
, 32 O.R. (3d) 67 (C.A.), leave to appeal
    refused,
[1997] S.C.C.A. No. 679,
at pp. 75-76. While
    severe, I cannot say that the sentence imposed by the trial judge was
    demonstrably unfit.

[42]

I respectfully take a different view of the
    trial judges conclusion on credit for PSC. T
he trial judge denied Ms.
    Li 1.5:1 credit by using the same aggravating factor (
i.e.
,
the
    ongoing nature of Ms. Lis offending) that was already reflected in the seven-year
    sentence she imposed. This amounted to impermissible double counting of an
    aggravating factor: see
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R.
    575, at paras. 81-83;
R. v. Codner
, 2013 ONCA 138, 303 O.A.C. 91, at
    paras. 21-22;

R. v. Nelson
,
2014 ONCA 853,
318
    C.C.C. (3d) 476, at para. 53; and
R. v. R.S.
,
    2017 ONCA 141, at para. 16.

[43]

I would allow the sentence appeal by crediting Ms. Lis 862 days of PSC at
    a rate of 1.5:1, for a total of 1293 days (or 43 months). I make no comment
    about how the Parole Board of Canada ought to administer Ms. Lis sentence.

E.

conclusion and disposition

[44]

The appeal from conviction is dismissed. The appeal from sentence is allowed
    in part, by crediting Ms. Lis PSC at a rate of 1.5:1. Accordingly, the
    seven-year sentence of imprisonment should be reduced by 43 months, instead of the
    29 months deducted by the trial judge.

[45]

I wish to express the courts appreciation
    to Ms. Rochman for her excellent assistance to the court on this appeal.

Released:

JUN 19 2017                                     G.T.
    Trotter J.A.

PR                                                     I
    agree Paul Rouleau J.A.

I
    agree David Paciocco J.A.





[1]
Two of Ms. Lis contempt sentences are referenced
at
    paragraphs 7 and 9 above. During submissions it was agreed that Ms. Li had
    received a further 15-day sentence, for a total of 120 days.


