



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2014 ONCA 146

DATE: 20140225

DOCKET: C55841

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jenny Tran

Appellant

Vincenzo Rondinelli, for the appellant

Sean Doyle, for the respondent

Heard: February 24, 2014

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 4, 2012 by Justice Mark L. Edwards of the Superior
    Court of Justice, dismissing the appeal from the conviction entered on June 10,
    2011 by Justice Donald J. Halikowski of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant Jenny Tran seeks leave to appeal the decision of Summary
    Conviction Appeal Judge M.L. Edwards of the Superior Court of Justice dated
    July 4, 2012, dismissing an appeal from the decision of D.J. Halikowski J. of
    the Ontario Court of Justice dated June 10, 2011 convicting the appellant of
    the criminal offences of unlawful confinement and assault.

[2]

The convictions arose out of an altercation at a health spa between the
    appellant, the spas owner, and the complainant, a client.  The complainant
    decided to leave the spa when, during her treatment, she heard a loud argument
    between the appellant and another customer.  The appellant would not let the
    complainant leave without paying, although the treatment had just started.  The
    appellant locked the spa door and pushed the complainant backwards when she
    tried to leave.

[3]

The defence at trial, based on the appellants testimony, was that the
    appellant was justified in forcibly preventing the complainant from leaving the
    spa until the police, whom she called by way of a 911 call, arrived to deal
    with the situation.  In essence, the appellants defence was that she was
    effecting a citizens arrest pursuant to s. 494 of the
Criminal Code
.

[4]

The trial judge rejected this defence.  He noted that [t]he accused
    herself admits that she did not view the behaviour of Ms. Howard even as a
    crime and concluded that this court cannot find that Ms. Howard was in any
    sense engaged in the commission of an indictable offence when she refused to
    pay for the service.

[5]

The summary conviction appeal judge set out the trial judges finding in
    the first quoted passage in the preceding paragraph and said:

That aspect of the learned trial judges reasons, in my view,
    puts an end to this appeal.  The accused did not have in her mind,
    subjectively, any belief in the fact that Ms. Howard, who was the complainant,
    had committed a crime, and as such there was no reasonable basis, in my view,
    for any defence based on a citizens arrest.

[6]

The appellant seeks to appeal on the basis that this conclusion of the
    trial judge, affirmed by the summary conviction appeal judge, was based on a
    single answer given by the appellant in her testimony that was in turn based on
    a misinterpretation of the word dispute by a Cantonese interpreter.  On this
    appeal, but not on the prior appeal, the appellant seeks to introduce fresh evidence,
    namely, an affidavit of another Cantonese interpreter, to establish this
    proposition.

[7]

We do not think that the proposed appeal comes within s. 839(1) of the
Criminal
    Code
as interpreted in the leading cases, especially
R. v. R.R.
(2008), 234 C.C.C. (3d) 463 (Ont. C.A.), at para. 32.

[8]

The appellant submits that her appeal raises a question of law of
    significance to the administration of justice beyond the singular circumstances
    of this case, namely, whether an accused can resort to the citizens arrest power
    under s. 494 of the
Code
in circumstances where a complainant refuses
    to pay for services rendered by the accused.

[9]

For several reasons, we do not think that the proposed appeal is a good
    vehicle for considering this issue.  First, there is very little evidence in
    the record about the contractual relations between the parties.  Second, the
    trial judge did not find that s. 494 of the
Code
was inapplicable in
    respect of the non-payment for a service.  Instead, he explicitly held that s.
    494 was applicable and then considered whether it afforded a defence.  Third,
    the issue raised by the proposed fresh evidence could have been advanced on the
    first appeal; it was not and there is no explanation for this failure.  Fourth,
    the proposed fresh evidence appears to relate to a question of fact, not of
    law, namely, what meaning did the interpreter convey to the accused about the
    word dispute in a question asked on cross-examination.

[10]

For
    these reasons, we do not think that the proposed appeal comes within s. 839(1)
    of the
Criminal Code
.  Accordingly, the application for leave to
    appeal is dismissed.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.


