



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Li, 2016 ONCA 573

DATE: 20160718

DOCKET: C59326

Strathy C.J.O., Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiaomin Li

Appellant

Timothy E. Breen, for the appellant

Carolyn Otter, for the respondent

Heard: June 1, 2016

On appeal from the convictions entered by Justice G.
    DiTomaso of the Superior Court of Justice, sitting with a jury, on February 14,
    2014.

By the Court:

Overview

[1]

The appellant was convicted of unlawfully producing marihuana and
    possession of marihuana for the purpose of trafficking. She received an 18
    month conditional sentence.

[2]

At trial, her defence was that her conduct was excused by duress, as she
    had participated in the crimes at the behest of Wing Kwan with whom she had
    been involved in a romantic relationship for more than a year. She testified
    that she had been physically, emotionally and sexually abused and that Kwan had
    threatened to kill her and her 18 year- old daughter.

[3]

The appellants ground of appeal is a narrow one: the trial judge erred
    in failing to relate the expert evidence regarding battered spouse syndrome to
    the objective elements of duress.

[4]

At the conclusion of the hearing, the court allowed the appeal, with
    reasons to follow. These are those reasons.

Facts

[5]

In July 2008, police began investigating an outdoor marihuana grow
    operation in Severn Township.  The police subsequently arrested the appellant,
    Wing Kwan, and two others.

[6]

The appellant and Kwan had been in a romantic relationship since the spring
    of 2008.  She said that when she learned that he was working to set up a
    marihuana grow operation, she tried to end her relationship with him. However,
    Kwan became physically abusive towards her and told her that if she left him,
    he would make sure that she never saw her daughter again.

[7]

The appellant then tried to end her relationship with Kwan by avoiding
    him and ignoring his telephone calls. However, Kwan would come to her apartment
    in the middle of the night, physically assault her, threaten her with a knife
    or gun and threaten to harm her daughter. The appellant testified that she was
    too scared to call the police.

[8]

The appellant testified that around 3:00 a.m. on June 23, 2009, Kwan
    woke her up and told her she had to come to the grow operation to act as an
    interpreter. She resisted, and Kwan grabbed her by the throat and started
    breaking things. The appellant then agreed to go. She later told Kwan that she
    wanted to go home, and he threatened to kill her. The appellant worked in the
    fields as directed by Kwan, and was arrested the following day.

[9]

In addition to the appellants testimony, her daughter, Sarah, also
    testified. Sarah testified that she frequently heard Kwan yelling at her
    mother, and that she once saw Kwan with his hands around her mothers neck.
    When she threatened to call the police on Kwan, he threatened to kill her and
    her mother.

[10]

The defence also called Deborah Sinclair, who was qualified to give
    opinion evidence on the dynamics of domestic violence in intimate
    relationships. Sinclairs evidence supported the appellants claim that she was
    a victim of abuse. Additionally, Sinclair addressed the behavioural
    characteristics of someone subject to such abuse, including a failure to seek
    assistance from police or third parties and inconsistent disclosure about the
    abuse.

Analysis

[11]

A trial judges charge is not to be measured against a standard of
    perfection:
R. v. Jacquard
, [1997] 1 S.C.R. 314, and a jury charge
    must be examined as a whole.

[12]

In
R. v. Malott
, [1998] 1 S.C.R. 123, a case dealing with
    self-defence, Major J. stated, at paras. 20 and 21, that the principles of
    battered woman syndrome must be communicated to the jury and the jury should be
    informed of how the expert evidence may be of use.

[13]

The Crown conceded that even though this case involved a claim of duress
    rather than self-defence, the principles had to be communicated to the jury so
    as to assess whether the defence of duress had been made out. That said, the
    Crown argues that the trial judge did so.

[14]

The trial judges jury charge consisted of lengthy summaries of the
    evidence of each witness. This included a summary of the evidence of Sinclair,
    the defence expert.

[15]

That said, while the elements of duress were described and Sinclairs
    testimony was summarized, no effort was made to relate her evidence to the
    legal issues and principles in a manner that would equip the jury to reach its
    verdict. Read as a whole, the charge did not provide the jury with the tools it
    needed to assess the appellants defence.  As a result, the convictions cannot
    stand.

Disposition

[16]

At the close of the Crowns submissions on appeal, the Crown agreed with
    the appellant that if the court allowed the appeal, an appropriate result would
    be an acquittal. The appellant had served her sentence, was facing imminent
    immigration issues, and the judge had accepted the appellants and Sinclairs
    evidence in his sentencing reasons.

[17]

In the circumstances, at the close of oral argument, we allowed the
    appeal, set aside the convictions and entered acquittals on both charges.

Released:

GS                                                    George
    R. Strathy C.J.O.

JUL 18 2016                                     S.E.
    Pepall J.A.

C.W.
    Hourigan J.A.


