



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jiang, 2018 ONCA 1081

DATE: 20181227

DOCKET: C62742

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chunqi Jiang

Appellant

Delmar Doucette, Andrew Furgiuele and Zahra Shariff, for
    the appellant

Milan Rupic and Rebecca Schwartz, for the respondent

Heard: December 4, 2018

On appeal from the conviction entered by Justice Gisele
    M. Miller of the Superior Court of Justice on June 26, 2014, sitting with a
    jury, and from the sentence imposed on August 29, 2014.

Pardu J.A.:

[1]

Chunqi Jiang appeals from his conviction for
    second degree murder. The Crown failed to disclose relevant evidence until
    partway through the appellants cross-examination. These were records relating
    to the appellants mothers health, which were relevant to the appellants defence
    that his mother killed the victim. Whether she was relatively robust or quite
    infirm had a bearing on the likelihood that she, rather than the appellant, was
    the killer. The mother died as a result of cardiac arrhythmia several weeks
    after the death of the victim in this case.

Mistrial application

[2]

The appellant applied for a mistrial after learning of the
    Crowns failure to disclose.
The trial judge concluded that
    there had been a serious breach of s. 7 of the
Canadian Charter of
    Rights and Freedoms
caused by the late disclosure of the
    medical records:

[66] I am satisfied that actual prejudice has
    been shown in respect [to] the fact that counsel for Mr. Jiang were unable, as
    a result of the late disclosure, to address in examination in chief of Mr.
    Jiang, the contents of the medical records and his awareness of the various
    health issues of Fen Gen Zhang that are apparent in the records.

[67] The conduct of the Crown in holding back
    the medical records until after Mr. Jiang was giving testimony and had
    completed examination in chief is a serious breach of Mr. Jiangs right to
    disclosure.

[3]

At the hearing of the mistrial application, the
    trial judge heard from Dr. Pickup, a forensic pathologist, about the
    significance of the medical records as they related to the mothers physical
    abilities. She understood Dr. Pickup to have testified at that time that the mother
    may well have been capable of inflicting the injuries sustained by the victim. On
    that basis, expecting that Dr. Pickup would testify to the same effect at the
    trial, she dismissed the application, concluding that any unfairness from the
    failure to disclose the evidence could be neutralized before the jury. Dr.
    Pickup however changed his evidence before the jury to say that it was beyond
    his competence as a forensic pathologist to express an opinion about the
    mothers physical abilities.

Arguments on appeal

[4]

The appellant and the Crown agree on the test to
    determine whether an appellant is entitled to a new trial as a result of
    non-disclosure by the Crown, derived from
R. v. Dixon
, [1998] 1 S.C.R. 244,
and
R. v. Skinner
, [1998] 1
    S.C.R. 298
. An appellant is entitled to a new
    trial if he demonstrates that there is a
reasonable
    possibility
the non-disclosure affected the outcome at
    trial or the overall fairness of the trial process:
Dixon
,

at paras. 31-35. A
    trial is unfair if it is 
reasonably possible
that disclosure [of the undisclosed item] would have had an impact
    on the conduct of the defence at trial:
Skinner
, at para. 12.

[5]

The Crown submits that the non-disclosure
    ultimately enured to the appellants benefit because of the way the trial
    unfolded and that the trial judges decision to refuse the mistrial application
    was correct. He submits that it was the Crown, rather than the defence, who
    lost credit with the jury and that by the end of the trial the non-disclosure
    meant nothing as Crown counsel conceded that the mother would have been
    physically capable of inflicting the fatal injuries.

[6]

The appellant submits that his defence would
    have been conducted differently had the medical records been disclosed before
    his examination in chief. He would have introduced the evidence about his
    mothers health in his own examination in chief, had he known it would be an
    issue, thus blunting the ability of the Crown to suggest he was deliberately
    concealing the real state of her health. The appellant also submits that the
    manner in which the Crown cross-examined him about his mothers health, before
    the records were disclosed, undermined his credibility in the eyes of the jury,
    and that this was compounded by the Crowns closing address. He also submits
    that there is a reasonable possibility that the non-disclosure affected the
    outcome of the trial.

The events leading to the non-disclosure

[7]

Since there will be a new trial, I confine my
    review of the facts to the skeletal essentials required to deal with the
    grounds of appeal advanced.

[8]

The following chronology describes the Crowns
    acquisition of the medical records, the failure to disclose them and the cross-examination
    by the Crown that alerted the defence to the non-disclosure:

·

Tuesday June 3
:
    Crown counsel received the mothers OHIP records and sent them to Dr. Pickup
    but did not disclose them to the defence

·

Friday June 6
:
    Crown counsel received the mothers medical records and sent them to Dr. Pickup
    but did not disclose them to the defence

·

Saturday June 7
:
    the family doctor told the officer in charge that the mother had been
    relatively healthy

·

Monday June 9, at 01
:
14
: Dr. Pickup sent an email note to Crown counsel  in
    which he said, among other things, that the mother had had an exercise stress
    echocardiogram for her heart in December 2011 and appeared to perform
    satisfactorily

·

During the interval June
    9-
13
: Dr. Pickup did
    not tell Crown counsel that the mother was very sick or that she had died of a
    heart attack

·

Monday June 9
:
defence counsel started her direct examination of the
    appellant

·

Wednesday June 11
:
defence counsel concluded her direct examination of the
    appellant; and Crown counsel began his cross-examination of the appellant

·

The Crowns cross-examination of the appellant
    led his counsel to suspect that medical records had not been disclosed

[9]

In the course of his cross-examination of the
    appellant, the trial Crown first elicited evidence that the appellant was
    capable of physical labour and was stronger than the victim. The Crown then
    embarked on the following line of questioning:

Q. And your mother was very sick; wasnt she,
    sick physically at the time?

A. Why are you -- based on what are you saying
    my mother was very ill?

Q. Based on your mothers medical records,
    sir. Im going to suggest to you -- well based on her post-mortem she died of a
    massive heart attack with 90 percent of her coronary artery blocked, are you
    aware of that?

A. I have never heard of that.

Q. All right. You -- your mother -- did you
    take your mother to a doctor in December of 2011 because she had -- she was
    experiencing chest pains?

A. I remember we just went to our family
    doctor to have a check up, thats all. But I dont remember the doctor ever
    mention to me that theres a huge issue regarding my mothers health.

Q. She -- she was -- she had to go to an
    Echocardiogram because of fears about her poor heart, right.

MS. INTERPRETER: Interpreter doesnt know how
    to translate Echocardiogram.

MR. McGUIRE: I dont know, a test that people
    get in order to check whether their heart is not working properly.

MS. INTERPRETER: Okay. Thank you.

A. I remember she mentioned those kinds of
    things to me.

MR. McGUIRE: Q. Cause you had the .

A. But she was also very clear to me that she
    said she was only doing that under the doctors suggestion and she also said
    its not exactly for her it is to benefit the doctor.

Q. Okay. So thats -- are you seriously
    saying, sir, that no one has ever told you that your mother died of massive
    heart attack on September the 9th. No one has ever said that to you?

MS. WELLS: Thats actually not accurate based
    on the medical evidence that we have. So if my friend is going to put something
    to my client, he should do it accurately.

MR. McGUIRE: All right.

MS. WELLS: Knowing the information that we from
    the doctor.

MR. McGUIRE: That she died of a 90 percent
    blocked coronary artery. Nobody ever told you that? I think thats a heart
    attack but maybe Im wrong.

MS. WELLS: Its not.

MR. McGUIRE: All right.

A. I have never heard of that until today I
    dont know how my mother passed away. All I see was the location where my
    mother passed away there seem to be a pool of blood.

MR. McGUIRE: Q. Do you see those photos.

A. These photos with blood was taken by my
    friend.

Q. Do you see the photograph on screen here
    says -- this is your mom right here, this is her name, Fen Gen Jhang, correct?

A. Yes.

Q. It says dissolve one tablet under the
    tongue when having chest pain every five minutes as needed or three times. If
    no relief go to an emergency room. Are you aware that your mother was taking
    pills every five minutes for chest pains, sir?

THE COURT: If needed

MR. McGUIRE: If needed.

MS. WELLS: Your Honour, I have an objection to
    some of this cause it would appear that the -- the Crown may have medical
    records that the defence doesnt. So Im going to ask to address something in
    the absence of the jury.

THE COURT: Okay. Well ask the jury to step
    out.

[10]

Contrary to what was suggested in cross-examination,
    the mother did not die of a heart attack but of a sudden cardiac arrhythmia which
    might not have earlier interfered with her ability to carry out normal physical
    activities. The mothers family doctor reported to the officer in charge on
    June 7 that the mother had been relatively healthy but had medical issues
    pertaining to her heart and anxiety about her relocation to Canada.

[11]

Dr. Pickup had reviewed her medical records and
    reported to the trial Crown on June 9 that the mother had undergone an exercise
    stress echo on December 19, 2011 and had appeared to perform satisfactorily. Contrary
    to the suggestions put by the trial Crown, Dr. Pickup did not report that the
    mother was very sick, or sick physically.

[12]

On the mistrial application, Dr. Pickup
    testified as follows:

Q. All right. Now in terms of just your review
    the ladys -- this ladys health records, the ones that -- that you received,
    can you advise Her Honour as to what -- first of all in -- in the course of
    your -- youre a pathologist and youre also a forensic pathologist, is that
    correct?

A. Yes.

Q. Are you -- is part of your duties and
    responsibilities from time to time reviewing health records to -- and forming
    opinions with respect to them?

A. Yes.

Q. Do you feel qualified to be able to look at
    these records and offer an opinion with respect to what theyre about?

A. Yes.

Q. All right. And whats -- whats -- what did
    you -- what did you glean from your review of her records?

A. From the review of the medical records
    supplied, which are from the family doctor here in Canada there are basically
    four things that I gleaned from them. Number one is that she had high -- high
    blood pressure or hypertension and it was controlled with medication. So there
    are a number of reports here where her blood pressure is actually normal, but
    shes taking medication for it. She has changes in her retina, which is the --
    the back of the eye that helps us to see that are a characteristic of longstanding
    hypertension or high blood pressure. She had decreased bone mineral density to
    the point that she was diagnosed with something called osteopenia, which is the
    stage before osteoporosis.

Q. Is that -- is that an unusual finding in
    somebody of her age?

A. Actually, no, most menopausal women will
    have some degree of osteopenia.

Q. Okay.

A. And because she had gone to her doctor on a
    few occasions complaining of chest pain or numbness in her arm, her doctor
    rightly so sent her for a stress test and the stress test that was performed
    was normal.

Q. It was what?

A. Normal.

Q. Okay. Is that -- is that your assessment of
    -- of her medical records?

A. Yes.

Q. All right. And -- and just in that regard, with
    that -- with your review of her medical records and your conduct of the
    post-mortem examination, are you able one way or the other to express an
    opinion about whether this woman would be capable of I guess committing the
    offence that -- with respect to the -- the lady who you -- the other lady you
    autopsied, Ms. Liu? Can you say one way or the other?

A. No.

Q. And -- and -- and explain that, why not?

A. Because people with significant coronary
    artery disease can live their lives and not know that they have significant
    coronary arteries until one day for reasons that are really unknown, their
    heart may spontaneously go into an abnormal rhythm.

[13]

The trial judge reasonably interpreted this evidence
    as evidence that Ms Zhang may well have been physically capable of inflicting
    the injuries to [the victim] and held at para. 71 of her reasons for decision
    on the mistrial application that this was important evidence which effectively
    neutralized the prejudicial impact of questions posed to the appellant by the
    Crown relating to the medical records.

[14]

At trial, however, Dr. Pickup testified as
    follows:

Q. Okay. Now in terms of your ability as a
    forensic pathologist, I mean maybe we have ideas of what you can actually say
    in court and what you cant say, but are you able to say, as a forensic
    pathologist, one way or the other, whether this woman would be physically capable
    of inflicting the injuries that you saw on -- on Guang Hua Liu?

A. No, thats really not a question for a
    forensic pathologist to answer.

Q. Okay. You cant -- you cant assist in that
    regard?

A. No.

Q. One way or the other?

A. No.

[15]

In his closing submissions to the jury the trial
    Crown referred to the mothers health issues:

Ms. Wells in her argument said Im going to
    suggest to you that she was physical incapable. Certainly not, she had two arms
    and two legs, I guess shes theoretically capable of doing this. But the reason
    we brought out the health information, both from her autopsy, health records, putting
    it together was to show you a factor that is involved in this. A factor that is
    just as relevant as their relative heights, just as relevant as their relative
    age, just as relevant as their relative -- as their relative build, the fact
    that this woman had health issues, full stop. It was led before you just so you
    would have a complete picture, so you would not be under any illusions as to
    what her state of health was. Youve heard that evidence, you decide. I submit
    its a relevant factor and thats for you to decide.

Analysis

[16]

I am satisfied that there is a reasonable
    possibility that the non-disclosure affected the overall fairness of the trial
    process. The appellant was left stumbling in front of the jury to respond to
    factual assertions that were contradicted to some extent by the medical records
    which had not been disclosed. The clear inference suggested by the questions is
    that the mother was very ill and could not have killed the victim, that this
    was apparent to the appellant and that his testimony was not credible. Had
    defence counsel been made aware of the issues raised by the medical reports, it
    is likely she would have canvassed the mothers health issues in greater depth
    in examination in chief. This unfairness was compounded by the trial Crowns closing
    address suggesting that the medical evidence was led so you would not be under
    any illusions as to what her state of health was. This was a return to the
    theme expressed in the Crowns cross-examination of the appellant about his
    mothers health.

[17]

Just as in
R. v. LAT
(1993)
,
14 O.R.
    (3d) 378 (C.A.),
the late disclosure of the medical records
    adversely affected defence counsels ability to deal with credibility issues at
    trial.

[18]

This in itself is sufficient to require a new
    trial. However, there is also a reasonable possibility that the medical records
    could support an argument that the mother was physically capable of inflicting
    the wounds on the victim. In cross-examination Dr. Pickup went so far as to say
    there was nothing in the records that said the mother was incapable of
    inflicting the fatal wounds. I do not read the trial Crowns closing
    submissions as a concession that the mother was so capable. Rather, the Crown
    was attempting to make a virtue of its tardy disclosure of the records.

[19]

There is also a reasonable possibility that the
    non-disclosure had an impact on the outcome of the trial. Here there was a
    suggestion that the mother had some animus towards the victim because the
    victim had stolen precious jewelry from the mother. Because of the mothers
    antipathy towards the victim, and her presence in the home at the time of the
    killing, the mothers role in the killing, if any, was a live issue before the
    jury.

[20]

I would accordingly allow the appeal and direct
    a new trial. It is not necessary to deal with the sentence appeal.

G. Pardu J.A.

I agree C.W.
    Hourigan J.A.

I agree Harvison
    Young J.A.

Released: December 27, 2018

GP


