



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Huang, 2013 ONCA 240

DATE: 20130416

DOCKET: C54305 and C54340

Doherty, MacPherson and Cronk JJ.A.

BETWEEN

DOCKET: C54305

Her Majesty the Queen

Respondent

and

Ying Huang

Appellant

AND BETWEEN

DOCKET: 54340

Her Majesty the Queen

Respondent

and

John Huang

Appellant

Zachary Kerbel, for the appellant, John Huang

Frank Addario and Megan Savard, for the appellant, Ying
    Huang

David Littlefield and Sabrina Montefiore, for the
    respondent

Heard: April 9, 2013

On appeal from the convictions entered by Justice Robert
    F. Scott of the Superior Court of Justice, sitting without a jury, dated August
    26, 2011.

By the Court:

A.

John Huangs Appeal

I.        Introduction

[1]

After a trial by judge alone, the appellant was convicted of conspiracy
    to produce marijuana, production of marijuana and possession of marijuana for
    the purposes of trafficking.  He was acquitted of a series of counts related to
    utilities theft. He was sentenced to four and one-half years imprisonment,
    after six months credit for pre-sentence custody and restrictive bail
    conditions.

[2]

The appellant appeals from his convictions.  His principal ground of
    appeal is that the trial judges conduct during the trial, in particular, his
    intervention during the Crowns cross-examination of the appellant, gave rise
    to a reasonable apprehension of bias and undermined the appearance of fairness
    in this case.

[3]

For the reasons that follow, we agree that the trial judges impugned
    comments gave rise to a reasonable apprehension of bias that fatally
    compromised trial fairness.  It follows that there was a miscarriage of justice
    and a new trial is required.

II.       Discussion

[4]

The charges against the appellant arose in connection with his role as a
    real estate agent for the purchasers of several properties in eastern Ontario that
    were used as the locations of marijuana grow operations.  The Crowns theory
    was that the appellant, using his position as a realtor, acted in concert with
    others to acquire the relevant properties for the purpose of producing large
    quantities of marijuana plants.  Alternatively, the Crown maintained that the
    appellant aided or abetted others to produce the marijuana plants.

[5]

The appellant claimed that he was an innocent dupe.  He testified at
    trial that he had no knowledge that the properties were going to be used to
    grow marijuana and only learned of their use for this illegal purpose after his
    arrest.  He said that he had been approached by the purchasers to represent
    them in the relevant sales transactions because they had either seen his
    advertisement in a Chinese newspaper, or they were from the same part of China
    as is the appellant and were referred to him by his wife through her contacts
    in the Chinese community.

[6]

The Crowns case against the appellant was circumstantial.  The
    appellants credibility was the core issue at trial.

[7]

The appellant was tried before a judge alone, together with his
    co-accused, Ying Huang.  The Crown maintained that the appellant and Ying Huang
    were co-conspirators, and that the appellant had represented Ying Huang on the purchase
    of 28 Hickory Grove in Belleville, one of the properties used for a marijuana
    grow operation.

[8]

During his examination-in-chief, the appellant agreed that he had acted
    as the realtor for the purchaser of this property.  However, he testified that
    the buyer was Yan Huang, not Ying Huang.  He said that he never met Ying Huang
    until after his arrest and that he had only met Yan Huang once, when he first
    showed her the Hickory Grove property.  The Crown countered that Ying Huang had
    impersonated Yan Huang, and that Ying Huang was the real purchaser of the
    Hickory Grove residence.

[9]

During the Crowns cross-examination of the appellant, Crown counsel
    challenged the appellants assertion that he had only met Yan Huang once, in
    February 2009, when he first showed her the Hickory Grove property for
    potential purchase.  In doing so, counsel confronted the appellant with a
    mutual release document regarding the Hickory Grove property that appeared to
    have been signed by Yan Huang and witnessed by the appellant in mid-March
    2009.

[10]

At
    this point in the cross-examination, the following exchange took place:

Q.      Did you ever see Yan Huang after that?

A.      Who?

Q.      Yan Huang,
    Peng Zengs wife, did you ever see her after that first trip?

...

A.

No.

Q.      I wonder
    if you could turn to page 15 of Mr. McKinneys file...Do you have page 15
    there?

A.      Yes.

Q.      This is the mutual release.

A.      Yes, I, I did, made it.

Q.      Pardon me?

A.      I made this, ah, ah, mutual release paper.

Q.      And its
    signed March the 12th, 09 by Yan Huang and you witnessed her signature?

A.      Yes, should be her signature.

Q.      But you
    told me you only saw her once, at the property?

A.      Yes.

Q.      And that was early February?

A.      Yes.

Q.      This is March, March 12th?

A.       Yes.  I remember I made
    this paper.  I think my wife took the paper and asked her to sign it.

Q.      But thats
    your signature, isnt it, Mr. Huang because you witnessed your bosss signature
    right below it?

A.      Right.

Q.      That is your signature, isnt it?

A.      Yes.

Q.      And this is an important document, isnt...

A.      Yes.

Q.      I believe
    you told us yesterday that this was getting out of a real estate deal and for
    you that means losing commission which in this case is about $6,500.00?

A.      Yes.

Q.      This document is worth $6,500.00 to you?

A.      Yes.

Q.      You must have seen her a second time?

A.      No.

Q.      You didnt?

A.      I never, I
    never saw her again.  There was, there were signatures several times, other
    times all my wife who brought the paper and ask her to sign them.

Q.      But Mr.
    Huang, if we look at page 15, you are signing this document saying that you
    witnessed Yan Huang sign it on March the 12th?

A.      Yes.

Q.      Is that false?

A.      I dont think it is false.

Q.      Well, did you or did you not...

THE COURT:        Im going to have you stop
    right there for a minute.  Do you understand what perjury is, Sir?  Do you want
    to take a minute with your counsel and she will instruct you what perjury is and
    that usually it incorporates about a year in custody.

THE WITNESS:     I dont think its, its
    false.

THE COURT:        Counsel is standing. 
    Just a minute.  Yes?  Do you want to take a minute and speak to him about what
    perjury is about?

MS. SCHOFIELD:  Well, Your Honour, with
    all due respect, Your Honour, I dont think that it is proper for Your Honour
    to interject and caution him about perjury at a point when he is trying to
    explain an answer.  It hasnt...

THE COURT:        Either he is present or
    he is not present.  He has testified that he didnt witness the signature,
    whereas the document he signed says he did.

MS. SCHOFIELD: Well, the document
    itself...

THE COURT:        Either he is there or
    he is not there, all right.

MS. SCHOFIELD:  I think he has already
    said he wasnt there.

THE COURT:        All right, you dont
    have to caution him about perjury, counsel.  Thank you.

MS. SCHOFIELD:  Well, Your Honour, its
    not whether I should caution him or not about perjury but I have concerns that
    if Your Honour believes that we are entering into perjurious evidence, you are
    obviously the Trier of fact and I have concerns about this trial, frankly.  If
    Your Honour has those concerns then...

THE COURT:        I have concerns,
    Counsel.  Ill tell you that right now but he may be able to explain them.  I
    just wanted to make sure that he didnt get himself entrapped into something
    that might cause some other charges.  Thats all Im saying, all right.

MS. SCHOFIELD:  Okay, okay.  I dont think that...

THE COURT:        Do you want to counsel him with respect to
    what perjury means?  Thats all.

MS. SCHOFIELD:  No I dont.  I dont think that...

THE COURT:        Thats all Im looking for, all right.

MS. SCHOFIELD:  Okay.

THE COURT:        I just want to make
    sure he doesnt get himself in a real jam here.

MS. SCHOFIELD:  Okay, understood, Your
    Honour.

THE COURT:        All right.  Thank you.  Go ahead, Counsel.

MS. HURLEY:       Mr. Huang, did you sign this document having
    witnessed Yan Huangs signature?

A.

Yes, I signed the
    paper.

Q.      Did you witness Yan Huang sign it?

A.      No.

[Emphasis added.]

[11]

The
    appellant argues that this interjection by the trial judge reveals that he had
    pre-judged the appellants credibility before the appellant had been given an
    opportunity to explain himself and before all the evidence and the submissions
    of counsel had been heard.  The trial judges remarks, the appellant says, were
    improper and gave rise to a reasonable apprehension of bias.

[12]

We
    agree.  The clear implication of the trial judges suggestion that the
    appellant required advice from his counsel on the meaning and consequences of
    perjury was that the appellant was being untruthful in his evidence to the
    court, such that criminal sanctions might follow.  This unprompted insinuation
    by the trial judge occurred at a critical point during Crown counsels
    cross-examination of the appellant on an apparent material contradiction in his
    testimony, when the appellant was in the course of offering an explanation for
    the suggested contradiction.  The trial judges comments clearly impugned the
    creditworthiness of the appellants testimony by suggesting that he had or was
    about to commit perjury.

[13]

The
    impugned remarks were not innocuous.  The appellants credibility was the
    central issue at trial.  The trial judges declaration that the appellant
    required the advice of his counsel on the serious issue of perjury  in the
    midst of his cross-examination by Crown counsel  gives rise to an inescapable
    apprehension that the trial judge had concluded, at this early point in the
    trial, that the appellant was not to be believed.

[14]

That
    the trial judge himself attached significance to this exchange is confirmed by
    his reasons.  In rejecting the appellants evidence as incredible, the trial
    judge stated: I find that he misled the Court on a number of critical issues:
    ... 5. his not knowing the co-defendant Ying Tina Huang at the relevant
    times, including the details of the purchase of 28 Hickory Grove, Belleville.

[15]

The
    impartiality of a trial judge is essential to achieve trial fairness.  In this
    case, the trial judges comments called his fairness and impartiality into
    serious question.  His comments would strongly suggest to the reasonable
    observer that he had formed the belief that the appellant was being less than
    truthful.

[16]

Moreover,
    the trial judges insinuation of perjury could also have intimidated the
    appellant and effectively undermined his ability to respond to further
    questioning by Crown counsel.  This, too, compromised trial fairness: see
R.
    v. Stewart
, [1991] O.J. No. 81 (C.A.), at pp. 11-12.

[17]

In
    these circumstances, we have no hesitation in concluding that the very high
    test for the demonstration of a reasonable apprehension of bias has been met. 
    In our opinion, an informed person, viewing the matter realistically and
    practically and having thought the matter through, would think that it was
    more likely than not the trial judge in this matter, consciously or
    unconsciously, would not decide the appellants trial fairly: see
Committee
    for Justice and Liberty v. Canada (National Energy Board)
, [1978] 1 S.C.R.
    369, at p. 394.

[18]

The
    Crown contends that the trial judge explained his remarks by indicating that he
    just want[ed] to make sure [the appellant] doesnt get himself in a real jam
    here.  The Crown further submits that defence counsel at trial, in effect, waived
    any impropriety in the trial judges interjection by indicating, in response to
    this proffered explanation by the trial judge, Okay, understood, Your Honour and
    by failing to object further and seek a mistrial on the basis of the trial
    judges remarks.

[19]

We
    reject this contention.  The suggested explanation by the trial judge did not
    ameliorate the appearance of unfairness occasioned by his remarks.  To the
    contrary, it exacerbated it.  The words uttered by the trial judge and relied
    upon by the Crown as constituting a benign explanation for the trial judges
    perjury references themselves reveal that the trial judge considered the
    appellants answers to Crown counsels questions as triggering possible further
    criminal consequences.  The appellant was already in a jam: he was defending
    himself before the court on criminal charges.  The trial judges reference to
    the appellant getting himself in a real jam can only be understood as meaning
    that the appellant, in the trial judges view, stood at risk of further
    criminal charges.  Indeed, the trial judge had earlier said as much when he
    told defence counsel: I just wanted to make sure that he didnt get himself
    entrapped into something that might cause some other charges.

[20]

Nor
    do we accept the Crowns submission that the appellants trial counsel is to be
    faulted for failing to object to the trial judges remarks.  As soon as the
    trial judge mentioned perjury, defence counsel was on her feet, objecting to
    the propriety of the trial judges intervention.  She promptly went on to
    explain that, in light of the trial judges comments, she had concerns about
    this trial.  In our view, her objection was timely, restrained and entirely
    appropriate.

[21]

In
    any event, the failure by counsel to object, or to seek a mistrial, has never
    been taken to constitute a waiver by an accused at a criminal trial of his or
    her rights, especially as fundamental and unqualified a right as the
    entitlement to a fair and impartial trial.

[22]

Nor
    is it for this court to speculate on what the result might have been at the
    appellants trial had he received a fair hearing.  The failure to afford the
    appellant a fair trial is fatal to the convictions entered against him and a
    new trial is required.  See
R. v. Curragh Inc.
, [1997] 1 S.C.R. 537.

[23]

We
    therefore conclude that the appeal must be allowed and a new trial ordered on
    this ground.  In light of this conclusion, it is unnecessary to address the
    other grounds of appeal raised by the appellant.  We should not be taken,
    therefore, as commenting on those grounds.

B.

Ying Huangs Appeal

I.        Introduction

[24]

Ying
    Huang was tried as a co-conspirator, together with John Huang.  Like Mr. Huang,
    she was convicted of conspiracy to produce marijuana, production of marijuana
    and possession of marijuana for the purposes of trafficking.  Unlike Mr. Huang,
    she was also convicted of several counts related to utilities theft.  As she
    was incarcerated for 33 months prior to sentencing, she was sentenced to time
    served.  She appeals from her convictions.

II.       Discussion

[25]

It was the Crowns theory at trial that Ying Huang was an active
    participant in the illegal production of marijuana at various of the relevant
    properties and that she acted as the banker or accountant for her fellow drug
    conspirators.  The Crown maintained that she was the actual purchaser of 28
    Hickory Grove in Belleville and that she had impersonated Yan Huang when
    acquiring this property in an effort to distance herself from the grow
    operation at that site.

[26]

The
    defence contended that the appellant was not part of the conspiracy and that a
    different person  Yan Huang  had purchased the Hickory Grove residence and
    was involved in the grow operations at that and other locations.

[27]

Of
    the various grounds of appeal advanced by this appellant, it is necessary for
    the disposition of her appeal to address only her argument that, on the basis outlined
    above regarding John Huangs appeal, the trial judges conduct in this case
    gave rise to a reasonable apprehension of bias.  She submits that this bias
    fatally undermined the appearance of fairness in respect of the entirety of
    this joint trial, resulting in a miscarriage of justice relating to her and Mr.
    Huang.  Accordingly, she contends, her convictions cannot stand and she, too,
    is entitled to a new trial.

[28]

We
    agree with submission.  The reasonable apprehension of bias arising from the
    trial judges inappropriate interjection during the Crowns cross-examination
    of Mr. Huang infected the appearance of fairness and impartiality for both
    accused.  Indeed, this was particularly acute in respect of Ms. Huang.  The
    trial judges improper interjection occurred precisely at the point during Mr.
    Huangs cross-examination when he was attempting to defend his assertion that
    he had not met Ying Huang until after his arrest and that the buyer of the 28
    Hickory Grove property was Yan Huang, not Ying Huang.  This exculpatory
    evidence bore directly on Ying Huangs culpability for the offences charged
    and, if accepted, would have led to her acquittal on some and perhaps all the
    charges against her.

[29]

We
    have already concluded that the test for the demonstration of a reasonable
    apprehension of bias is met in this case.  Our reasons for that conclusion, set
    out above in connection with John Huangs appeal, apply equally to this
    appeal.  In our view, that apprehension of bias also fatally compromised the
    fairness of Ms. Huangs trial.

[30]

By
    suggesting to the reasonable observer, through his remarks regarding Mr.
    Huangs testimony, that he had formed the belief that Mr. Huang was being less
    than truthful in his evidence concerning Ying Huang and her alleged involvement
    in the purchase of the 28 Hickory Grove property, the trial judges conduct
    gave rise to the apprehension that he did not believe the exculpatory evidence
    of Mr. Huang.  This evidence was a critical plank in Ying Huangs defence.  As
    a result, the trial judges improper intervention had the inevitable effect of
    undermining trial fairness in respect of Ying Huang, as well as John Huang.

[31]

Accordingly,
    we conclude that a miscarriage of justice occurred regarding both accused. 
    Ying Huangs appeal must be allowed and her convictions set aside.  A new trial
    is required for both Ying Huang and John Huang.

C.


Concluding Observation and
    Dispositions

[32]

We
    make a final observation.  This is the second time in less than one year that
    this court has allowed appeals relating to judgments of this trial judge on the
    basis of reasonable apprehension of bias.  In both instances, the perception of
    bias arose because of improper and unwarranted interventions by the trial judge
    during the examination of witnesses: see
Lloyd v. Bush
, 2012 ONCA 349. 
    In both instances, public resources were wasted, great inconvenience to the
    parties resulted and the integrity of the administration of justice was tarnished.

[33]

It
    bears repetition that trial judges, like appellate judges, must preside in a
    judicious fashion.  Trial judges are, at bottom, listeners.  As this court said
    in
R. v. Hossu
, (2002), 167 C.C.C. (3d) 344, at para. 35, [i]t is counsels
    job, not the trial judges, to explore inconsistencies in a witness
    testimony.

[34]

The
    appeals are allowed and a new trial in respect of each appellant before a
    different trial judge is ordered.

Released:

APR 16 2013                                    Doherty
    J.A.

DD                                                  J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


