



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zheng, 2014 ONCA 345

DATE: 20140501

DOCKET: C55383

Hoy A.C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

An Bai Zheng

Applicant/Appellant

Linda Tang, for the appellant

Geoffrey Roy, for the respondent

Heard: April 28, 2014

On appeal from the conviction entered on May 19, 2011 and
    the sentence imposed on June 20, 2011 by Justice M. Rawlins of the Ontario
    Court of Justice.

R.A. Blair J.A.:

[1]

The appellant seeks to set aside his conviction for possession of a
    large number of marijuana plants for the purpose of trafficking.  He was
    acquitted on charges of production of marijuana and theft of electricity.

[2]

The appellant also seeks leave to appeal and, if leave is granted,
    appeals from the sentence of 10 months imprisonment (6 months plus 4 months
    credit for pre-trial custody).

The Facts Led at Trial

[3]

Late one afternoon police officers attended
    at a house in Windsor in response to a 911 call about gunshots heard at the
    house.  One officer saw a man who turned out to be the appellant open the
    curtains from inside the house.  The officer waved at the man to come out and
    the appellant emerged, wearing pyjamas and carrying a house key on him.  The
    police took the key and searched the house to see if anyone was inside,
    injured.

[4]

No one was discovered inside, injured,
    but the police did discover a large marijuana grow operation. The one-storey
    house had three bedrooms, a kitchen, an attic and a basement.  Only one bedroom
    appeared to be used as a bedroom.  The second was covered in black garbage bags
    and had large lights, dirt and wires in it.  The third bedroom had 200 stacked
    and empty plant/flower pots and soil on the floor.  In the basement, the police
    discovered 343 potted marijuana plants, along with fans, chemicals, and hoses. 
    A search of the attic revealed a hydro by-pass.

[5]

On a coffee table on the main floor
    were the appellants passport, a citizenship certificate and a 2007 statutory
    declaration and power of attorney signed by the appellant.

[6]

The appellant was arrested and
    charged.  The police then obtained a search warrant and returned to the house
    to search it.

[7]

At trial, the appellant did not testify. 
    On the basis of the evidence before her, the trial judge found the appellant to
    be in possession and control of the house and its contents.  She held him to be
    in constructive possession of the marijuana plants and  since there was no
    issue that the 343 marijuana plants and the other related paraphernalia were
    sufficient to satisfy the criteria for possession for the purposes of
    trafficking  therefore guilty of possession of marijuana for the purposes of
    trafficking.  She had a reasonable doubt with respect to production and theft
    of electricity, however, and acquitted the appellant on those charges.

The Grounds of Appeal

[8]

The appellant raises four grounds of
    appeal.  First, he argues that the trial judge was biased against him, based on
    a statement the trial judge made during the course of the sentencing
    proceedings.  Secondly, he asserts that the verdict was unreasonable, based on
    the evidence. Thirdly, he submits that there has been a miscarriage of justice
    as a result of the incompetence of his trial counsel in failing to call him to
    testify and in failing to call two other available witnesses to testify.  Finally,
    he says that the sentence imposed was harsh.

[9]

We would not give effect to these
    grounds of appeal.

Reasonable Apprehension of Bias

[10]

The appellant states that the following
    statement made by the trial judge during the sentencing proceeding discloses a
    reasonable apprehension of bias:

THE COURT:  I know.  You see, you say
    Poor me. Poor Mr. Zheng.  Youre lying to officers in Toronto.  Youre lying
    to the Probations Department saying you live in Windsor and so quite honestly,
    sir, I have very little sympathy for you.  You come to our country as an
    immigrant.  You came as a guest who was invited to stay.  I would not foul your
    country and its laws by doing something like this, so why are you doing this to
    us?  Exactly.  Thats an aggravating factor sir, the by-pass.

[11]

While the comment was unfortunate, in
    our view, and would have better been left unsaid, we are not persuaded it would
    give rise to a reasonable apprehension of bias, as that concept is described in
    the jurisprudence.  It would not have led a reasonable and right-minded person,
    informed and viewing the matter realistically and practically, and who had
    thought the matter through carefully, to conclude that the trial judge was
    biased: see
R v. R.D.S.
, [1997] 3 S.C.R. 484, at para. 111.  The
    threshold for a finding of bias is necessarily high because such a finding
    calls into question the integrity of the administration of justice:
R.D.S.
,
    at paras. 112, 117.

[12]

Here, the impugned statement was one
    comment over a three-day trial; it was made during the sentencing proceedings
    and after conviction; the trial judge acquitted the appellant on two of the
    three charges he faced.  In terms of the sentencing proceedings, there is
    nothing to suggest that the trial judge treated the fact the appellant is an
    immigrant or was dishonest with his probation officer as aggravating factors,
    or that the remark had any impact on the sentence imposed.

[13]

We reiterate that the comment was
    unfortunate.  However, we would not give effect to this ground of appeal.

Unreasonable Verdict

[14]

Nor would we give effect to the
    submission that the verdict was unreasonable.  The appellant was the sole
    occupant of a house in which a very large marijuana grow operation was
    discovered  spread through the entire house.  Another judge may have come to a
    different conclusion, but it was open to the trial judge here, on the record
    before her, to find that the appellant was in control and possession of the
    premises and had knowledge of the operation and, therefore, was in constructive
    possession of the marijuana plants.

Ineffective Assistance of Counsel

[15]

The appellants main argument is that
    his trial counsel was incompetent and that this incompetence resulted in a
    miscarriage of justice and therefore requires a new trial.

The Appellants Story

[16]

The appellant filed two affidavits in
    support of his ineffective assistance of counsel claim, and was cross-examined
    on them.  His trial counsel also filed an affidavit.  She was not
    cross-examined on that affidavit.

[17]

The appellant is a Canadian citizen who
    came to Canada from China in 1988 and worked in various jobs.  He had a home in
    Toronto but lost it and his personal belongings in a fire in 2007.  He then
    moved around and spent time at various local casinos.  There he met a man, Xiao
    Di, from his hometown in China.  Xiao Di loaned him $5,000 which the appellant
    lost while gambling in the casinos.  He then made an agreement with Xiao Di
    that he would do house chores for Xiao Di at the latters house in Windsor (the
    premises in question) in order to work off the debt and he would receive a
    further $5,000 from Xiao Di in a year.

[18]

Between February 2010 and February
    2011, the appellant spent about two weeks in Toronto and two weeks in Windsor
    each month.  In Windsor he stayed at the house in question, which was rented by
    Xiao Di and another man.  The appellant took care of the yards and occasionally
    went to Casino Windsor.  Xiao Di and his friend came to the house and worked in
    the basement from time to time and stayed there occasionally.  They asked the
    appellant not to go to the basement, and he did not have keys to the basement,
    which he believed was locked.  He was 61 years old at the time and suffering
    from asthma.  He was therefore too weak to do anything physical other than
    taking care of the yards.

[19]

With one exception, the thrust of this
    evidence is similar to what trial counsel says was explained to her during one
    of her three interviews with the appellant.  At paras. 11 and 12 of her
    affidavit she states:

11. During the interview Mr. Zheng
    explained his version of events.  He explained that he was brought to Windsor
    in December of 2009 to be the caretaker of a house that was owned by an
    individual that he owed money to due to gambling debts.  I was advised by Mr.
    Zheng that he lived at the home and took care of it, up until his arrest.  He
    mowed the lawn in the summer and shovelled snow in the winter.  He further
    advised me that he was aware that a lot of things were moved into the house
    January 29, then to the basement on January 30; although he indicated that he
    did not assist in transporting the plants.  He also advised me that men in
    uniforms came into the house and changed the pipes.  He stated that the
    electricity, the heating and hot water systems were changed.

12. Mr. Zheng advised that he was in the house for a year and
    did nothing with this type of activity.  He said that he suspected something
    illegal and planned to move out at the end of February.  He explained that he
    did not report the activities that he perceived to be illegal because he does
    not speak English.

[20]

Trial counsel also deposed that Mr.
    Zheng had not advised her that he travelled back and forth to Toronto monthly
    and in fact stated that he lived at the house.  He never described himself as a
    guest.

The Appellants Case In Respect of Ineffective
    Assistance of Counsel

[21]

The appellants central allegations in
    respect of his ineffective assistance of counsel claim are these: trial
    counsel: (i) failed to spend enough time meeting with him in preparation for
    and at trial; (ii) failed to advise the appellant of his right to testify and
    of her decision not to call him at trial; (iii) should have called other
    witnesses who were available for the defence; and (iv) should have sought an
    adjournment of the trial in order to clarify the issue of the appellant`s place
    of residence and, having determined that the appellant was living half time in
    the residence, should not have abandoned the appellant`s s. 8
Charter
application attacking the police search of the premises. Other allegations advanced
    by the appellant on this issue need not be addressed because there is simply no
    basis for them in the record.

The Law

[22]

In
R v. Archer
, (2005) 293
    O.A.C. 56, at paras. 119-21, this Court summarized the principles relating to
    an appellate courts analysis of a claim of ineffective assistance of counsel.  
    The appellant must demonstrate: (i) that the material facts in support of the
    claim have been established on a balance of probabilities, where those facts
    are contested; (ii) that counsels acts or omissions amounted to incompetence;
    and (iii) that counsels ineffective representation caused a miscarriage of
    justice.  Trial counsels performance at trial is to be reviewed on a
    deferential basis because, as this Court said in
R v. White
(1997), 114
    C.C.C. (3d) 225, at p. 247, even among the most skilled counsel, no two
    lawyers will defend an accused in the same way.  In
Archer
, the Court
    said:

Incompetence is measured against a
    reasonableness standard.  That assessment is made having regard to the
    circumstances as they existed when the impugned acts or omissions occurred.
Hindsight
    plays no role in the assessment.  Allegations of incompetent representation
    must be closely scrutinized.  Many decisions made by counsel at trial will come
    to be seen as erroneous in the cold light of a conviction
.  The
    reasonableness analysis must proceed upon a strong presumption that counsels
    conduct fell within the wide range of reasonable professional assistance:
R
    v. G.D.B.
(2000), 143 C.C.C. (3d) 289, AT P. 298 (S.C.C.) [Emphasis added.]

[23]

In our view, the appellants
    ineffective assistance of counsel claim cannot meet these criteria.

Meeting with the Appellant

[24]

Trial counsel met with the appellant,
    with an interpreter, on three separate occasions.  Her Legal Aid dockets
    confirm two of these and she was not cross-examined on her assertion that there
    was a third.

[25]

The appellant complains that trial
    counsel did not meet with him for long enough.  However, it is not the length
    of the meetings that counts; it is whether they sufficed for trial counsel to
    understand the clients position and for the client to understand the process
    and issues.

[26]

Here, it is clear from the excerpts
    from trial counsels affidavit cited above that she was aware very early on of
    the appellants version of events, including his statement that he lived at the
    premises where the marijuana was found.  As explained below, it is also clear
    that there was a full discussion between trial counsel and the appellant
    concerning his right to testify and the question of the s. 8
Charter
application.

[27]

We would not give effect to this
    allegation.

The Appellant`s Right to Testify


[28]

The ground relating to the appellant`s
    right to testify cannot succeed either, because the appellant has not met the
    first of the
Archer
criteria; he has not established the material facts
    in support of that claim on the balance of probabilities.

[29]

Trial counsel swore an affidavit in
    which she denied each of the appellant`s allegations.  In particular, she swore
    that she and the appellant had discussed during a break in the trial  in the
    presence of an interpreter  whether or not [he] should testify and that she
    advised him not to testify but that it was his decision:

I advised him that based on what
    he had told me and what he was insisting on testifying to, that he risked being
    convicted of all counts
.  I explained
    again that the test is knowledge and control and given that he wished to
    testify that he lived there but did not have anything to do with the grow op,
    but that he knew it was there, he risked being convicted by admitting knowledge
    and control.  I explained to him that at that point, the Federal Prosecutor
    could only prove that he was in the house at the time they knocked on the door
    and that by testifying, he would give evidence that he was there for a much
    longer period of time.  I explained to him that it did not matter if he had the
    keys in his hand or not when he was arrested because he was in the house in his
    pajamas and clearly staying for at least the night.  I further told him that if
    he admitted that the bedroom was the one that he stayed in, that he risked
    being convicted of the electrical diversion since a large group of wires were
    routed right through the closet.
I told him he should not testify but that
    it was his decision.
[Emphasis added.]

[30]

This advice cannot be said to have been
    unreasonable.  Indeed, it seems to us to have been sound.  As noted earlier,
    trial counsel was not cross-examined on her affidavit describing her meetings
    with the appellant.

[31]

In contrast, the appellants
    recollection of what was said in this connection was unclear at best, even
    allowing for his difficulties with the English language.  He conceded that
    trial counsel had recommended against his testifying because it would only make
    things worse.  He could not remember what he had said when trial counsel
    advised him not to testify.  He did not deny that she had told him it was his
    decision whether to do so or not.

Other Witnesses


[32]

The appellant also complains that trial
    counsel failed to call a neighbour of the premises and the landlord of the
    premises as defence witnesses.  In our view this decision fell within a
    reasonable range of decisions.  It is not clear what the evidence of these potential
    witnesses would have been, but at the very least it would not have detracted
    from the fact that the appellant was the sole occupant of a marijuana grow
    house at the time, wearing his pajamas at 5:30 in the afternoon.  Indeed, it may
    well have placed the appellant in the premises for a considerably longer period
    of time than the Crown was able to prove at that time.  This would not have
    assisted the appellant on the issue of knowledge and control, as trial
    counsels advice referred to above pointed out.

The Section 8 Application

[33]

At the outset of trial, counsel brought
    an application under s. 8 of the
Charter
to exclude the evidence
    obtained by the police through the unwarranted search of the premises just
    prior to the appellants arrest.  The trial began on a blended hearing with the
voir dire
on the
Charter
application being heard at the same time
    as the trial evidence.  After the evidence pertaining to the
voir dire
,
    defence counsel and the trial judge engaged in a discussion about the
Charter
application and the potential problem of showing the appellants status to
    bring it if he were not a resident.  The trial was adjourned for a period of
    time to enable defence counsel to consult with the appellant.

[34]

Trial counsel, the appellant and an
    interpreter had a discussion about the application as well as the discussion
    referred to above concerning the risks of the appellant testifying at trial. 
    Upon resuming, defence counsel abandoned the
Charter
application.

[35]

The appellant alleges that trial
    counsel was negligent in not pursuing further information about his residency
    to enable him to establish standing and to proceed with the
Charter
application.  We do not agree.

[36]

As trial counsel points out in her
    affidavit, pursuing the s. 8 challenge would require the appellant to assert
    standing (based on residence) and on the issue of knowledge and control the
    [only] evidence adduced at that point put [the appellant] in the house for
    only a short period of time.  In addition, trial counsel had heard the Crowns
    evidence on the
voir dire
at that point, and was in a position to judge
    the likelihood of success on the application.  We note, as well, that even if
    the evidence obtained through the unwarranted search had been excluded, the
    police had returned and one a second search on the basis of a proper warrant. 
    Presumably that search would have yielded the same results.

[37]

Evidence establishing that the
    appellant was in fact resident in the house would have made the inference that
    he had the necessary knowledge and control to establish the possession charge
    much more compelling.  In those circumstances, the decision to abandon the
Charter
application was a reasonable one.

Sentence

[38]

Although the appellant is a first-time
    offender, the 10-month sentence imposed by the trial judge falls within the
    range of sentences for similar offences.  This was a sophisticated marijuana
    grow operation, involving at least 343 marijuana plants.  See
R v. Doan
,
    2011 ONCA 626;
R v. Ha,
2008 ONCA 749; and
R. v. Nguyen
, 2006
    O.J. No. 1745 (C.A.). In any event, we are advised that the sentence has been
    served.

[39]

In the circumstances, we would not
    grant leave to appeal sentence.

DISPOSITION

[40]

In the result, the appeal against
    conviction is dismissed.  Leave to appeal sentence is refused.

R.A. Blair J.A.

I agree Alexandra Hoy
    A.C.J.O.

I agree J.C.
    MacPherson J.A.

Released: May 01, 2014


