



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Tang, 2013
    ONCA 45

DATE: 20130125

DOCKET: C50864

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiang Tang

Appellant

Russell Silverstein, for the appellant

Amy Alyea, for the respondent

Heard and released orally: January 17, 2013

On appeal from the decision of Justice Jane E. Kelly of
    the Superior Court of Justice, sitting as a summary conviction appeal court judge,
    dated July 10, 2009, dismissing the appeal from the conviction entered by
    Justice C.H. Paris of the Ontario Court of Justice, on November 29, 2006.

ENDORSEMENT

[1]

The appellant was charged with two counts of assault, assault with a
    weapon and possession of a weapon for the purpose of committing an offence, arising
    out of a domestic dispute with his wife.  At trial, he was acquitted of the two
    assault charges and convicted of the assault with a weapon charge.  The weapon
    possession charge was stayed on the basis of
R. v. Kienapple
, [1975] 1
    S.C.R. 729.  The appellant received a suspended sentence, plus one year
    probation.  His appeal from conviction and sentence to the summary conviction
    appeal court was dismissed.  He now seeks leave to appeal to this court and, if
    leave be granted, appeals from conviction on the sole ground that the trial
    verdict was unreasonable.

[2]

It is well settled that leave to appeal to this court on a question of
    law alone under s. 839(1)(b) of the
Criminal Code
is granted sparingly
    and only in exceptional cases.  In
R. v. R.R.
, 2008 ONCA 497, Doherty
    J.A. of this court described the limited circumstances in which leave to appeal
    should be granted as falling generally within two categories of cases: (1)
    where the proposed question of law has significance to the administration of
    criminal justice generally; or (2) where there appears to be a clear error,
    even if it cannot be said that the error has significance to the administration
    of justice beyond the specific case.

[3]

The appellant argues that this case comes within the second category of
    cases.  We disagree.

[4]

We are not satisfied that the appellant has met the requisite threshold
    for leave.  Contrary to the appellants submission, there was direct evidence
    in this case on which a properly instructed jury, acting judicially, could have
    convicted the appellant of the assault with a weapon charge.  The appellants
    14-year old son witnessed the altercation between the appellant and his wife. 
    His evidence of the events that transpired, including the appellants holding
    of a knife in his wifes direction while their argument continued and the
    appellant demanded money, was sufficient to ground the conviction.  The trial
    judge did not err in his appreciation or treatment of the evidence.  On the
    contrary, he properly took account of the full circumstances surrounding the
    incident, including the fact that the appellant had pushed his wife moments
    before fetching the knife, and, based on that evaluation, concluded that the
    assault with a weapon charge had been made out.

[5]

It follows that the summary conviction appeal court judge properly found
    that the trial verdict was not unreasonable.  In these circumstances, we see no
    merit to the appellants proposed appeal.  The appellant merely seeks to
    relitigate the same issue that was fully and properly addressed by the summary
    conviction appeal court judge.

[6]

The requirements for leave to appeal not having been met, leave to
    appeal is denied.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.

Sarah
    Pepall J.A.


