



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Teng, 2021 ONCA 785

DATE: 20211105

DOCKET: C66742

Fairburn A.C.J.O., Doherty and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiu Jin Teng

Appellant

Brian H. Greenspan and Michelle M. Biddulph, for the
    appellant

John Patton and Ken Lockhart, for the respondent

Heard: April 13, 2021 by video conference

On appeal from the conviction entered by Justice I.
    MacDonnell of the Superior Court of Justice, sitting with jury, on January 11,
    2017, and from the sentence imposed on January 13, 2017.

Doherty J.A.:

overview

[1]

In March 2012, the police charged the appellant with murdering her
    husband, Dong Huang. In January 2017, a jury convicted the appellant of first-degree
    murder.

[2]

The appellant was not represented by counsel at trial. During jury
    selection, the appellant made a 
Rowbotham
 application, asking the
    court to stay the trial until the Attorney General (Civil) agreed to fund
    counsel for the appellant. The trial judge dismissed the motion and the trial
    proceeded. The trial judges dismissal of the
Rowbotham
application is
    the primary ground of the appeal.

[3]

The appellant advances four additional grounds of appeal. She submits:

·

her right to a trial within a reasonable time under s. 11(b) of
    the
Charter
was breached and the proceedings should have been stayed;

·

the police violated the appellants rights under ss. 10(a) and
    (b) of the
Charter
and the statements she made while detained by the
    police in her apartment should have been excluded from evidence pursuant to s.
    24(2) of the
Charter
;

·

the trial judge erred in his instructions to the jury on
    circumstantial evidence; and

·

the conviction for first-degree murder was unreasonable.

[4]

In addition to appealing her conviction, the appellant appeals one
    aspect of her sentence. She submits the trial judge erred in making an order
    under s. 743.21 of the
Criminal Code
, R.S.C., 1985, c. C-46,
    prohibiting the appellant from communicating with her brother-in-law, the
    victims brother. The appellant submits the order was improperly made as she
    had no notice of the Crowns intention to request the order and had been
    excluded from the courtroom during sentencing. The appellant further submits
    her brother-in-law has court-ordered custody of the appellants young daughter
    and it is essential that the appellant be able to communicate with the brother-in-law
    about her daughters well-being.

[5]

For the reasons that follow, I would dismiss the appeal. The trial judge
    found that the
Rowbotham
application was not a
bona fide
attempt to obtain counsel, but was rather an attempt to derail and delay the
    trial. That finding was open on the evidence and justified the dismissal of the
Rowbotham
application.

[6]

I would also reject the other grounds of appeal. In rejecting the s.
    11(b) claim, the trial judge properly applied the transitional exception laid
    down in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. The trial
    judge correctly held the appellant was not detained when questioned in her
    apartment, meaning her s. 10 rights were not engaged. The jury instruction on circumstantial
    evidence was complete and correct. The evidence supporting a conviction on the first-degree
    murder charge was formidable and readily clears the unreasonable verdict
    standard.

[7]

I would allow the sentence appeal, but only on a narrow point. I would
    vary the term prohibiting communication with the brother-in-law to provide for
    an exception permitting communication if that communication was made in
    accordance with the terms of an order made in the family law proceedings
    involving the appellants daughter.

the evidence

(i)

The Discovery of the Body

[8]

The appellant and her husband, Mr. Huang, lived in a basement apartment
    with their young daughter. They had been married for about 10 years. The appellant
    arrived in Canada in 2010.

[9]

Ms. Gu, one of the landlords, went to the apartment on February 29, 2012
    to ask for the rent. She asked the appellant about her husband. The appellant told
    Ms. Gu her husband had gone to Hong Kong two days earlier.

[10]

Later
    the same day, Ms. Gu became suspicious when it appeared to her that the
    appellant was moving a whole lot of stuff out of the apartment. Concerned
    that the appellant and her husband were moving out without notification Ms. Gu
    decided to examine the apartment for possible damage. She and a friend entered
    the apartment when the appellant was not there. They did not find any damage
    but the friend did find two feet sticking out from under a blanket in a storage
    closet in the apartment. There were several boxes on top of the body. Ms. Gu
    immediately contacted Mr. Wang, her husband.

[11]

Mr.
    Wang arrived at the apartment a short time later and looked in the storage closet.
    He removed the boxes and found Mr. Huangs body wrapped in several blankets. By
    this time the appellant had returned home. Mr. Wang asked her about the body in
    the storage closet. She told him that her husband, who had a history of heart
    problems, had died of a heart attack the previous week. Both the appellant and Mr.
    Wang called 9-1-1.

[12]

Two
    police officers arrived at the apartment separately shortly after the 9-1-1
    calls. The appellant and Mr. Wang were yelling at each other. The officers
    separated them and spoke to each individually. The landlord told the officers that
    the body of the appellants husbands body was in a storage closet. The police
    looked in the closet and saw the body. The two officers spoke with the
    appellant separately. She told both of them her husband had died of a heart
    attack a few days earlier. She told one of the officers she did not know what
    to do and she told the other officer she had dragged her husbands body from the
    bedroom and put it in the storage closet.

[13]

In
    a statement to the police the next day, the appellant said she found her
    husbands dead body in the basement. She thought he might have had a heart
    attack but did not really know what had caused his death. According to her, she
    passed out when she found his body.

(ii)

The
    Forensic Evidence

[14]

The
    doctor who conducted the post-mortem found the following:

·

perimortem ligature marks on the deceaseds neck;

·

green twine tied loosely around the deceaseds neck;

·

perimortem ligature marks, indicating the deceaseds wrists and
    ankles had been bound before death. The marks were similar to the ligature
    marks on the neck;

·

two significant perimortem blunt force impact injuries on the
    deceaseds skull, one on the left side and the other on the back of the right
    side of the skull; and

·

a perimortem needle puncture wound on the inside of the
    deceaseds elbow, a common injection site.

[15]

The
    pathologist found no evidence of a heart attack. In his opinion, the deceased
    was strangled to death. Green twine, like that wrapped around the husbands
    neck, was found in the apartment. Death occurred between two days and two weeks
    before the discovery of the body.

[16]

A
    toxicologist testified that traces of a sedative called Zopiclone, prescribed
    for insomnia, were found in the deceaseds blood. She could not say whether the
    amounts found in his blood were consistent or inconsistent with the therapeutic
    dosage of the drug. Zopiclone is normally taken orally but it can be injected.
    The puncture mark on the inside of the deceaseds elbow could not be
    scientifically linked to the presence of the Zopiclone in the deceaseds body.

(iii)

The Appellants New Apartment

[17]

There
    was evidence, that in late February 2012, before Mr. Huangs body was found, the
    appellant had begun moving items belonging to her, and some childrens toys,
    into a different apartment in a house not far from where the appellant lived
    with the deceased. There was no evidence that any of Mr. Huangs belongings had
    been moved into that apartment.

(iv)

The Life Insurance

[18]

The
    appellant was licenced to sell life insurance in early 2011. She worked as a
    financial security advisor (FSA) for Freedom 55 Financial, starting near the
    end of 2010. FSAs are independent contractors and are paid by way of commission
    on the products they sell. Among other products, Freedom 55 Financial sells
    life insurance.

[19]

In
    June 2011, the appellant attempted to purchase a $1.5 million life insurance
    policy on her husbands life. That policy named her as the beneficiary. The
    insurer wanted a higher premium than the appellant offered. That policy never
    took effect.

[20]

The
    appellant did, however, purchase two life insurance policies on her husbands
    life in late 2011. She was the beneficiary in both policies. The first policy, purchased
    in October 2011, provided $972,639 in death benefits payable to the appellant.
    That policy came into effect in November 2011. The second policy, purchased in
    November 2011, provided $650,000 in death benefits, with an additional $400,000
    in the event of accidental death. This policy came into effect in January 2012.
    At the time of Mr. Huangs death, the appellant was the beneficiary of two life
    insurance policies totalling between $1.5 and $2 million.

[21]

It
    was quite common for persons starting out in the life insurance business to
    sell policies to friends and neighbours. The appellant earned commissions on
    the policies obtained on her husbands life. She also had to pay the premiums
    on the policies to keep them in good standing.

[22]

An
    insurer will only pay out on a life insurance policy if there is a death
    certificate. The insurer will not pay if the beneficiary is responsible for the
    death, or if there are material misrepresentations made in obtaining the
    policy. If death occurs within two years of the issuance of the policy, the
    insurer may conduct a more detailed review of the death before paying on the
    policy.

[23]

The
    appellant did not make a claim on either policy. She was charged with murdering
    her husband within five days of the discovery of his body.

[24]

The
    appellant did not testify.

Ground #1: Did the trial judge err in dismissing the
Rowbotham
application (Reasons reported at 2017 ONSC 277)

(i)

The
Rowbotham
Remedy

[25]

In
R. v. Rowbotham
(1988)
,
41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 65, 70, this court held that if an
    accused wants counsel and cannot retain counsel privately, through Legal Aid,
    or through some other means, the court should, on an application by the
    accused, stay the proceedings against the accused if the court concludes that
    representation by counsel is essential to a fair trial as guaranteed under s.
    11(d) of the
Charter
. While the stay does not directly require the
    state to fund counsel to defend the accused, the stay will only be lifted for
    all practical purposes if the state provides the necessary funding for counsel:
    see
R. v. Rushlow
, 2009 ONCA 461, 96 O.R. (3d) 302, at paras. 14-21.

[26]

On
    a
Rowbotham
application, the court, in deciding whether the accused
    can receive a fair trial without counsel, will consider, among other factors,
    the seriousness of the charge, the complexity of the evidence, the accuseds
    familiarity with the process, any mental disorder, and any language or
    cognitive limitations the accused may have.

[27]

No
    one suggests the appellant had the means to hire her own lawyer for a lengthy
    murder trial. Factors relevant to trial fairness, such as the seriousness of
    the charge, supported the conclusion that the appellant should have a lawyer.
    In the course of the lengthy proceedings, Legal Aid had provided certificates
    to two different lawyers and the Attorney General (Civil) had agreed to funding
    orders on at least two occasions.

[28]

Unlike
    most
Rowbotham
applications, this application did not turn on the
    appellants financial status or her ability to obtain a fair trial without
    counsel. This application turned on the threshold question of the
bona fides
of the application itself. The trial judge held that the application was not a
genuine
attempt to obtain counsel funded
    by the Attorney General (Civil), but was an attempt to avoid a trial on the
    merits and derail the trial process. The trial judge said, at para. 46 of his
    reasons for his
Rowbotham
ruling:

The timing of the application speaks volumes about its true
    nature. It could have been brought months earlier, as Justice McMahon had
    urged. It could have been brought at the outset of the trial. Instead, it was
    brought only after all of the defendants other efforts to halt the proceedings
    had failed. When the timing of the application is put into the context of all
    that preceded it, there is only one reasonable inference, namely that it was
    not in reality a funding application but rather only the latest
maneuver
in the campaign that began on June 30 to
    prevent the charge against her from being tried on the merits.

(ii)

The
    Standard of Review

[29]

The
    decision to grant or refuse a
Rowbotham
application turns on the
    application of legal principles laid down in
Rowbotham
to the facts of
    the particular case. The ultimate decision to grant or refuse the application
    raises a question of law reviewable on a correctness standard. However,
    findings of fact upon which the
Rowbotham
decision is made are
    reviewable on a more deferential standard:
R. v. Shepherd
, 2009 SCC
    35, [2009] 2 S.C.R. 527, at para. 20. This court will reverse findings of fact
    only if they are unreasonable, based on a material misapprehension of relevant
    evidence, or a failure to consider or give proper effect to material evidence:
R.
    v. Morrisey
(1995), 97 C.C.C. (3d) 193, at p. 221 (Ont. C.A.);
R. v.
    M.C.
, 2014 ONCA 307, 308 C.C.C. (3d) 318, at paras. 31-33.

[30]

I
    have no doubt that a judge has the authority to dismiss a
Rowbotham
application
    if the judge is satisfied the application has been brought to impede or derail
    the trial proceedings. A motion brought for those purposes is the very
    definition of an abuse of process. A trial judge must be able to protect the
    court from attempts to use the process to defeat the proper administration of
    justice: see
R. v. Amos
, 2012 ONCA 334, at paras. 12-22, leave to
    appeal refused, [2014] S.C.C.A. No. 160;
R. v. Phung
, 2012 ONCA 720,
    at paras. 18-34, leave to appeal refused, [2014] S.C.C.A. No. 97;
R. v. Al-Enzi
,
    2014 ONCA 569, at paras. 88-96, leave to appeal refused, [2014] S.C.C.A. No.
    405.

[31]

R.
    v. Amos
,
R. v. Phung
, and
R. v. Al-Enzi
were all cases
    in which trial judges ordered an accused on to trial on a first-degree murder
    charge without counsel. In
Amos
and in
Phung
, this court
    upheld those decisions because the evidence supported the trial judges
    findings that the motions to adjourn to allow the accused to obtain counsel
    were not
bona fides
, but were brought for improper ulterior purposes.
    In
Al-Enzi
, this court overturned the trial judges decision because there
    was no evidence to support two of the three reasons given by the judge for
    ordering the continuation of the trial despite counsels removal from the
    record. In addition, this court found the trial judge failed to consider
    several other relevant factors. In short, applying the standard of review
    applicable to factual findings, this court found the findings wanting and set
    aside the order predicated on those factual findings.

[32]

Mr.
    Greenspan, for the appellant, submits that this case is similar to
Al-Enzi
. Mr. Patton, for the Crown, contends it is much more
    like

Amos
or
Phung
.

(iii)

The History of the Proceedings

[33]

To
    assess the trial judges finding that the
Rowbotham
application was
    brought for an ulterior and improper purpose, it is necessary to review some of
    the lengthy history of this proceeding, particularly the events from June 30,
    2016 forward. As the trial judge did, I divide the chronology into four
    segments:

·

The proceedings before June
    30, 2016;

·

The proceedings on June 30, 2016;

·

The proceedings between June 30, 2016 and the commencement of the
    trial in October 2016; and

·

The proceedings at trial.

(a)

The Proceedings
    Before June 30, 2016

[34]

The
    appellant was charged with first-degree murder in March 2012. She retained the
    law firm of Hicks Adams through Legal Aid. In May 2012, the appellant
    discharged that firm and sought to retain Mr. Rosen. He undertook to represent
    the appellant, assuming Legal Aid would approve the transfer of the Legal Aid
    certificate to him. By September 2012, Mr. Rosen had obtained the necessary
    approval from Legal Aid and had agreed to several dates between March and May
    2013 for what was anticipated to be a 15-day preliminary inquiry.

[35]

In
    January 2013, about two months before the preliminary inquiry was to commence,
    the appellant discharged Mr. Rosen. Mr. Rosen was given no forewarning of, or
    any explanation for, his dismissal. He advised the appellant that Legal Aid
    would have to approve a second transfer of her certificate. The appellant told
    him she did not need Legal Aid and had a lawyer, Mr. Bains. The appellant
    refused to sign Mr. Rosens termination letter.

[36]

Mr.
    Bains was present in court. He indicated he was not available on the dates
    scheduled for the preliminary inquiry, and that there was no chance the appellant
    would be able to retain him privately.

[37]

In
    subsequent proceedings, Mr. Bains declined to set target dates for the
    preliminary inquiry until funding issues with the Attorney General (Civil) were
    resolved. Those issues appeared to have been resolved by May 2013. In August
    2013, new preliminary dates were scheduled for July and August of 2014.

[38]

The
    appellant was committed for trial in August 2014. Mr. Bains continued to act
    for her. The appellant made her first appearance in Superior Court in September
    2014. In November 2014, a trial date in September 2015 was set. The parties
    anticipated a six-week trial.

[39]

On
    September 1, 2015, about two weeks before the six-week jury trial was to begin,
    Mr. Bains applied to be removed from the record, citing ethical reasons for his
    inability to continue to act for the appellant. The presiding judge removed Mr.
    Bains from the record and vacated the September 2015 trial dates.

[40]

On
    September 4, 2015, counsel for the Attorney General (Civil) confirmed that it
    would continue to fund counsel for the appellant, adding that the appellant had
    been put on notice that any further breakdown in her relationship with counsel
    would require that the Attorney General revisit the commitment to fund counsel.
    The appellant was provided with the names of several possible lawyers. The
    appellant indicated she understood there was no guarantee the Attorney General
    would continue to fund counsel if, at some point, the appellant desired yet
    another different lawyer.

[41]

On
    October 2, 2015, Mr. Nuttall appeared and indicated he had consulted with the
    appellant. A trial date of November 2, 2015 was available, although it was not
    clear that Mr. Nuttall was available at that time. The appellant indicated she
    did not want to be represented by Mr. Nuttall.

[42]

In
    October 2015, Mr. Richardson and Mr. Moore appeared on behalf of the appellant.
    They asked for a brief adjournment before setting a trial date. The earliest
    available dates were in September 2016. Crown counsel on the case was not
    available until October 2016. Justice McMahon set a trial date of October 31,
    2016.

[43]

On
    November 17, 2015, Mr. Richardson indicated that the funding agreement was in
    place and that he and Mr. Moore would be acting for the appellant at trial.

[44]

The
    matter was spoken to several times between January and June 2016. In April 2016,
    Mr. Moustacalis appeared for the appellant and indicated he was replacing Mr.
    Richardson as co-counsel with Mr. Moore. On June 3, 2016, the appellant
    indicated she wanted Mr. Moustacalis removed as one of her counsel. Mr. Moore
    remained on the record.

(b)

The
    June 30, 2016 Appearance

[45]

The
    matter came back before Justice McMahon in assignment court on June 30, 2016.
    Mr. Moore was on the record for the appellant.

[46]

Shortly
    before the appearance on June 30, 2016, Mr. Moore had served the appellant with
    an application to be removed from the record. Mr. Moore brought the application
    to be removed from the record only because the appellant had refused to sign
    the funding agreement with the Attorney General (Civil) naming Mr. Moore as
    counsel. Unless the appellant signed, Mr. Moore would not be paid for his
    defence of the appellant.

[47]

At
    the June 30, 2016 hearing, McMahon J. asked the appellant to indicate whether she
    would sign the funding agreement. The appellant expressed no concerns about her
    relationship with Mr. Moore or the quality of his services. She indicated she
    was concerned about delays in the pretrial and that she had just received Mr.
    Moores application to be removed from the record. McMahon J. explained that
    there had been no delay in the pretrial proceedings and that Mr. Moore was
    content to act for the appellant if she signed the funding agreement, so he
    could be paid, but if she did not sign the agreement, he wanted to be removed
    from the record.

[48]

Mr.
    Moore told McMahon J. that the funding agreement also required the appellant to
    undertake not to retain any counsel other than Mr. Moore, and that if she
    discharged Mr. Moore, she would agree to the appointment of
amicus
.
    Mr. Moore indicated that he understood that the appellant wanted Mr. Moore as
    one of her lawyers, but she did not want him to be lead counsel. The appellant
    confirmed Mr. Moores understanding.
[1]

[49]

A
    lengthy dialogue between McMahon J. and the appellant followed. McMahon J.
    summarized the situation and repeatedly told the appellant her options. He
    asked her to indicate whether she was prepared to sign the funding agreement.
    The appellant answered McMahon J.s questions with different questions. She
    mentioned that she had spoken to two potential lawyers.

[50]

Counsel
    for the Attorney General (Civil) briefly summarized the funding that had been
    provided to the appellant over the years. He said:

At this point, were not prepared to fund any further counsel
    for Ms. Teng.

[51]

McMahon
    J. once again summarized the situation for the appellant. He told her that if she
    did not sign the funding agreement, he would grant Mr. Moores request to be
    removed from the record. He also told the appellant she could try to get
    another lawyer, but given the history of the matter, and the position of the
    Attorney General (Civil), she could end up unrepresented at trial on October
    31, 2016. McMahon J. adjourned the proceeding to allow the appellant to
    consider her position and consult with Mr. Moore if she wished to do so. He made
    it crystal clear that he needed an answer to his question  would the appellant
    sign the funding agreement?

[52]

When
    court reconvened, the appellant continued to refuse to indicate whether she was
    prepared to sign the funding agreement. She continued to answer McMahon J.s straightforward
    question with different questions. After McMahon J. had tried once again to get
    an answer to his question, and the appellant had responded with more questions,
    McMahon J. said:

Ive made it clear at least on five occasions this morning you
    either can have Mr. Moore as your lawyer and the government will pay for it or
     and sign it  or dont sign it. He will be removed as your lawyer and you can
    try to bring an application to have another lawyer act for you, but I am
    telling you that there is a risk in doing that, that you may have to represent
    yourself at trial. So those are the two options, your decision.

[53]

The
    appellant continued to avoid the question. McMahon J. repeated her options. He
    said:

Okay, Ms. Teng, as Ive said many times this morning, it is in
    your best interest to be represented at your trial by an experienced criminal
    lawyer. If you select Mr. Moore, you will have a guaranteed experienced
    criminal lawyer to defend you. If you decide not to have Mr. Moore, you may or
    may not have any lawyer at your trial. So if you want to be guaranteed of
    having a lawyer whos an experienced criminal lawyer represent you at trial,
    then having Mr. Moore would make sense. It is for you to decide. I cant make
    the decision for you. I can just explain the options.

[54]

Finally,
    the appellant answered McMahon J.s question, indicating she would not sign the
    funding agreement today. When the trial judge stated, Ms. Teng elected not
    to sign it, the appellant immediately responded, I was forced by your
    influence. McMahon J. corrected the appellants misstatement, indicating it
    was entirely up to her.

[55]

Mr.
    Moore was removed from the record. The appellant was unrepresented from this
    time forward.

(c)

Proceedings
    Between June 30, 2016 and the Commencement of the Trial in October 2016

[56]

On
    July 7, 2016, the appellant was back before McMahon J. When he indicated she
    had discharged Mr. Moore, the appellant immediately challenged the trial judge,
    indicating she had not discharged Mr. Moore. She mentioned the two counsel she
    had identified at the June 30, 2016 proceeding, but said they were not coming
    to court to represent her before they were paid. McMahon J. adjourned the
    matter to July 19, 2016 to allow Ms. Teng to attempt to have counsel appear for
    her.

[57]

On
    July 19, 2016, McMahon J. indicated that Mr. Baum had advised the court he was
    prepared to bring a
Rowbotham
application on behalf of the appellant.
    He had apparently faxed a copy of the application to the Crown. McMahon J.
    asked the appellant if she wanted Mr. Baum to bring a
Rowbotham
application. As occurred on June 30, 2016, the appellant did not answer the direct,
    simple question posed by McMahon J. Instead, she raised different, unrelated
    matters concerning certain transcripts, and the quality of the interpreter that
    had been provided for her in the proceedings before McMahon J.

[58]

McMahon
    J. appointed Mr. Litkowski as
amicus
. The appellant said she was totally
    opposed to
amicus
working for her. McMahon J. explained the role of
amicus
.
    He adjourned the proceeding to allow the appellant to speak with Mr. Litkowski.

[59]

After
    Mr. Litkowski spoke with the appellant, he advised the court that the appellant
    had requested a copy of the recent decision of the Supreme Court of Canada in
R.
    v. Jordan
. The decision had been released about a week earlier. The
    appellant had decided to bring a s. 11(b) application and was in the process of
    preparing her affidavit in support of that application.

[60]

McMahon
    J. expressed concern that if there was to be a
Rowbotham
application,
    it should be heard as soon as possible, given the pending October 31, 2016
    trial date. Mr. Litkowski could only indicate the appellant seemed to be agreeable
    to Mr. Baum bringing a
Rowbotham
application. The appellant did not
    tell McMahon J. she wanted Mr. Baum to bring a
Rowbotham
application.
    There is no evidence she ever instructed Mr. Baum to bring an application even
    though she knew he had prepared the necessary documentation as early as
    mid-July 2016.

[61]

The
    appellant appeared in assignment court on a regular basis in July and August
    2016. There was some indication in early August that she would be bringing her
Rowbotham
application on August 26, 2016. August 26 came and went. No
Rowbotham
application
    was made.

[62]

In
    an appearance on September 6, 2016, the appellant indicated she had another
    lawyer who was prepared to bring a
Rowbotham
application. That
    application was tentatively scheduled for September 28, 2016. McMahon J.
    indicated that if the application was successful, the trial might be adjourned
    briefly to January 2017. September 28 came and went. No
Rowbotham
application was made.

[63]

At
    subsequent proceedings, there was a suggestion Mr. Kerbel would bring a
Rowbotham
application on October 12, 2016. No application was brought.

[64]

In
    her many appearances before McMahon J. between the end of June and late October
    2016, the appellant was primarily concerned with her s. 11(b) motion. In her dialogue
    with McMahon J., she demonstrated a firm grasp on the rules applicable to s.
    11(b) motions and the materials needed for those motions.

(d)

Proceedings
    at Trial Commencing on October 31, 2016

[65]

On
    October 31, 2016, the first day of the trial, the appellant brought a s. 11(b)
    motion. She was assisted in the preparation of the material and the argument of
    the motion by
amicus
. On November 3, 2016, the trial judge dismissed
    the motion. He provided written reasons shortly afterwards:
R. v. Teng
,
    2017 ONSC 568.

[66]

On
    November 3, 2016, the appellant indicated she was being denied her right to a
    lawyer. She refused to indicate whether she was requesting an adjournment of
    the trial and declined to participate in the proceeding because she did not
    have a lawyer. The trial judge took the appellants submissions as a request
    for an adjournment because she could not have a fair trial without a lawyer. The
    trial judge indicated he had determined in his earlier ruling that the
    appellant was not actually interested in having a lawyer, but wanted to delay
    and derail the proceedings. He indicated the proceedings would continue. At the
    same time, the trial judge set out the parameters for the involvement of
amicus
.
    The appellant was opposed to any involvement by
amicus
.

[67]

On
    November 7, 2016, the appellant indicated she had applied to the Court of
    Appeal for leave to appeal the dismissal of the s. 11(b) motion. The appellant argued
    that the trial was stayed by virtue of her application to the Court of Appeal.
    The trial judge refused to stay the trial.

[68]

Pretrial
    motions brought by the Crown proceeded between November 7 and 10, 2016. When
    the trial judge inquired as to whether the appellant intended to challenge
    jurors for cause or peremptorily, the appellant explained that she needed
    glasses to be able to look upon the perspective jurors. The trial judge
    offered to arrange for the appellant to sit where she had a better view of the
    prospective jurors, but the appellant declined the trial judges invitation.

[69]

On
    November 14, 2016, the appellant took the position that the jury selection
    could not proceed, as she did not have a lawyer. The trial judge indicated jury
    selection would proceed on November 17, 2016.

[70]

On
    November 15, 2016, the appellant produced a notice of application to quash several
    search warrants and production orders. There had been no indication at any time
    during the litigation that the validity of the warrants and the production
    orders would be challenged. The appellant claimed that jury selection could not
    proceed until the motion to quash the warrants and production orders had been heard
    and decided. She told the trial judge she needed time to prepare her
    application record and factum. The trial judge ruled that any motion to quash
    the warrants or production orders would be heard after jury selection, and that
    jury selection would proceed as scheduled on November 17, 2016.

[71]

After
    the trial judge indicated the motion to quash the warrants would not delay jury
    selection, the appellant told the trial judge, for the first time, that she
    wished to bring a
Rowbotham
application. According to her, there were
    many lawyers willing to act for her.

[72]

Jury
    selection proceeded on November 17, 18 and 21, 2016. On the morning of November
    21, 2016, the appellant renewed her s.11(b) application. The trial judge
    dismissed the motion. The appellant then filed a written
Rowbotham
application. The application did not identify any lawyer who was prepared to
    act for the appellant and no one appeared for the appellant or communicated
    with the court or the Crown. The trial judge dismissed the
Rowbotham
motion on November 22 and provided written reasons shortly afterwards:
R.
    v. Teng
, 2017 ONSC 277.

[73]

The
    trial proceeded over some 20 days to a verdict in January 2017. The appellant
    was unrepresented throughout the trial. Mr. Litkowski acted as
amicus
throughout the trial.

(iv)

The Trial Judges Findings of Fact on the
Rowbotham
Application

[74]

The
    trial judge made three important findings of fact:

·

The appellant engineered the constructive dismissal of Mr.
    Moore on June 30, 2016 (Reasons, at paras. 39, 41).

·

The appellant failed to make any meaningful effort to retain any
    other counsel to replace Mr. Moore between June 30 and the commencement of the
    trial on October 31 (Reasons, at paras. 39, 43).

·

The appellants actions were motivated by her desire to avoid a
    trial on the merits (Reasons, at paras. 41, 44).

[75]

The
    finding the appellant took no meaningful steps to obtain counsel between Mr.
    Moores removal from the record on June 30, and the commencement of trial at
    the end of October, is unassailable. Although several dates were set for the
Rowbotham
application, no application was ever brought, even though to the appellants
    knowledge Mr. Baum had prepared the necessary material by the middle of July
    2016.

[76]

As
    the trial judge pointed out, the appellant made no reference, even after the
    trial had started, to the possibility of a
Rowbotham
application until
    several other efforts by her to abort or delay the commencement of the trial
    had failed: Reasons, para. 45. At no time during the trial proceedings did the
    appellant identify a lawyer who was prepared to act at trial for her, or even prepared
    to bring a
Rowbotham
application on her behalf.

[77]

It
    is also significant that McMahon J. expressly told the appellant on June 30
    that she could bring a
Rowbotham
application if she did not want to
    sign the funding agreement put forward by the Attorney General (Civil). If, as
    is submitted on appeal, the appellants real concern was that funding should
    provide for two and not just one lawyer, the appellant could very easily have
    sought that relief in a
Rowbotham
application. I have no doubt that
    Mr. Moore would have assisted the appellant in that regard. Instead, the
    appellant chose to take no steps to obtain a
Rowbotham
order before
    the trial started. Even when the trial started, the appellant did not seek a
Rowbotham
order, but repeatedly claimed she could not get a fair trial without a lawyer.

[78]

The
    trial judges finding, that the appellant had engineered the removal of Mr.
    Moore on June 30, is also supported by the evidence. The appellant chose to
    refuse to sign the funding letter, having repeatedly been advised by McMahon J.
    that Mr. Moore would be removed from the record, and she could well find
    herself unrepresented at trial.

[79]

In
    the proceedings on June 30, the appellant gave two reasons for not signing the
    funding agreement. Viewed reasonably, neither had any merit. It was only after
    Mr. Moore indicated the appellant did not want Mr. Moore as her lead counsel
    that the appellant advanced this explanation for refusing to sign the funding
    agreement.

[80]

As
    explained above, even if the appellants desire to have two lawyers could
    explain her refusal to sign the funding agreement, it offers no explanation for
    her failure to take any steps to have the court determine whether the funding
    of two lawyers was essential to a fair trial. The appellant could have brought
    a
Rowbotham
application immediately seeking a stay unless the
    government agreed to fund two lawyers. She brought no such motion and there is
    no evidence she ever made any inquiries of anyone about the possibility of an
    application to secure funding for two lawyers. It is a fair inference from the
    appellants actions that she was quite content to be without counsel from June
    30 to the commencement of her trial.

[81]

The
    trial judges finding that the decision to engineer the removal of Mr. Moore on
    June 30 and the decision to take no meaningful steps to obtain counsel before
    jury selection were motivated by a desire to avoid trial on the merits is also
    supported by the evidence. The appellant knew full well, from prior events in
    the proceedings, that the removal of counsel near a scheduled hearing date
    could result in lengthy delays of the proceedings. The preliminary inquiry had
    been delayed by 15 months when the appellant fired Mr. Rosen shortly before the
    preliminary inquiry was to commence. The trial had been delayed by 13 months
    when, shortly before the scheduled trial date, Mr. Bains had to be removed from
    the record for ethical reasons.

[82]

Had
    the appellants last-minute
Rowbotham
application succeeded, jury
    selection would have been aborted, and the trial would inevitably have been delayed
    for many months while funding was re-negotiated, new counsel was retained, and new
    trial dates were found and fixed. Nor was there any reason to believe the
    appellant would have actually retained counsel and been prepared to go to trial
    with that counsel on any subsequent trial date.

[83]

Counsel
    for the appellant submits that it made little sense for the appellant to try
    and delay her trial. She was in custody, and would presumably remain there, as
    long as her trial was pending.

[84]

The
    strength of the Crowns case on the murder charge may provide one explanation
    for the appellants desire to avoid a trial on the merits. The record also
    demonstrates the appellant was keenly aware of the Supreme Court of Canadas decision
    in
R. v. Jordan
. It may be that, from the appellants perspective, any
    further delay could only add fuel to the s. 11(b) claim she had decided to
    bring. If that claim succeeded, she would, of course, avoid a trial on the
    merits. As Moldaver J. observed in
Jordan
, at para. 21:

[W]e recognize that some accused persons who are in fact guilty
    of their charges are content to see their trials delayed for as long as
    possible. Indeed, there are incentives for them to remain passive in the face
    of delay. Accused persons may seek to avoid responsibility for their crimes by
    embracing delay, in the hope that the case against them will fall apart or they
    will obtain a stay of proceedings.

[85]

Counsel
    for the appellant also submits, that even if the trial judge correctly
    concluded the appellant brought the
Rowbotham
application to delay and
    derail the trial, the trial judge was still required to consider whether the
    appointment of counsel was necessary for a fair trial and, if it was, make a
Rowbotham
order. The appellant argues that fair trial concerns, and not the appellants
    motivation for bringing the
Rowbotham
application, should have drove
    the result on the application.

[86]

I
    disagree. To address a motion on its merits, having found that the motion was
    brought to delay and derail the proceedings, could only be seen as condoning a
    grave abuse of process. Furthermore, the appellants motive for bringing the
Rowbotham
application cannot be divorced from the merits of the application. On the trial
    judges findings, the appellant did not want counsel. She wanted a reason to
    delay the trial. It is difficult to understand how one should assess the
    significance of counsel to the conduct of a fair trial in the face of a
    strategy which contemplates using the absence of counsel to avoid going to
    trial.

[87]

Counsel
    for the appellant next argues, that by agreeing to fund the appellants
    defence, the Attorney General (Civil) effectively acknowledged the appellant
    could not get a fair trial without counsel. Counsel for the appellant describes
    this as a concession by the Crown which compels the conclusion counsel was
    essential to a fair trial for the appellant.

[88]

While
    the determination by the Attorney General (Civil) at an earlier stage in the
    proceeding that an accused should receive funding may have relevance to a
    judges determination of a
Rowbotham
application brought at a later
    stage in the proceeding, it had no relevance to the issue on which this
    particular
Rowbotham
application turned. On the trial judges findings,
    this application had nothing to do with securing counsel for the purposes of
    ensuring a fair trial.

[89]

I
    would not interfere with the material findings of fact made by the trial judge
    on the
Rowbotham
application. On those findings, the application was
    not a genuine attempt to secure counsel, but was rather an attempt to avoid a
    trial on the merits. The motion was an abuse of process and the trial judge
    properly dismissed it on that basis.

(v)

Did
    the Appellant Receive a Fair Trial?

[90]

Counsel
    correctly contends, that even if the
Rowbotham
motion was properly
    dismissed, the accused is entitled to a fair trial and can challenge the
    fairness of that trial on appeal. The fairness of the appellants trial must,
    however, be assessed in light of the tactical decisions made by the appellant,
    including her decision to use the absence of counsel to attempt to delay or
    derail the trial.

[91]

The
    trial was fair. The trial judge was acutely aware of the need to ensure that
    the accused received a fair trial. He also appreciated that the absence of
    counsel placed an added burden on him to protect the appellants fair trial
    rights. The trial judge took extraordinary steps to do so, including the
    appointment of a very experienced
amicus
, whose involvement in many
    facets of the trial helped to ensure that the Crowns case was properly tested
    and arguments available to the defence were properly put before the court.

[92]

The
    trial judge not only provided detailed explanations to the appellant of rulings
    he made and procedures to be followed, he also provided written explanations for
    many of the procedures. He offered various accommodations to the accused. For
    example, he suggested that evidence the appellant claimed she wanted to lead in
    her defence from witnesses who were not available could be placed before the
    jury by way of the preliminary inquiry transcripts of some of those witnesses.

[93]

Unfortunately,
    as the trial progressed, the appellant became progressively more abusive toward
    the trial judge. She deliberately obstructed his efforts to conduct a fair and
    orderly trial. She made statements before the jury she had been expressly told
    she could not make. She refused to answer reasonable questions put to her by
    the trial judge which were obviously intended to assist the trial judge in
    ensuring that the appellant received a fair trial.

[94]

The
    various exchanges between the trial judge and the appellant concerning potential
    defence witnesses provides a good example of the trial judges patient, if not dogged,
    attempts to take all reasonable steps to assist the appellant and the
    appellants refusal to accept that assistance. The trial judges instructions
    to the jury when he was eventually forced to remove the appellant from the
    courtroom during his jury instructions epitomized the fairness with which the
    trial judge conducted this very difficult trial.

[95]

The
    appellant used an interpreter at times during the trial, as she was entitled to
    do. Nothing on the record, however, suggests any deficiencies the appellant may
    have had with the English language interfered with her ability to obtain a fair
    trial. She cross-examined witnesses in a manner that displayed her grasp of the
    evidence and the applicable rules governing questioning of witnesses. For
    example, her cross-examination of the pathologist went directly to important
    points for the defence.

[96]

Several
    exchanges during the trial indicate the appellant was able to follow the
    evidence being given in English. On several occasions, she intervened to ask
    that a sentence or two from a witness be repeated, as the interpreter had
    fallen slightly behind in providing an interpretation of the evidence.

[97]

The
    appellant addressed the jury in closing argument at great length. Most of her
    argument was in English. It was coherent and directed to the issues in the
    case.

[98]

The
    appellants many exchanges with the trial judge and McMahon J. indicate that
    she understood very well what was being said to her and was very capable of
    responding to those comments and setting out her position. She had obviously informed
    herself with respect to court procedures. She knew the kind of material that
    had to be filed in respect of various motions, she was able to generate that
    material expeditiously, and she understood the issues raised in those motions.

[99]

The
    appellant also understood what was being said to her by McMahon J. and the
    trial judge. On many occasions, she corrected both when she believed they had
    misstated or misrepresented something to her. Her corrections demonstrate an
    appreciation of distinctions, including legal distinctions that were sometimes
    relatively subtle. The appellant was clearly not intimidated by the proceedings
    and was in no way reluctant to speak her mind and advance her position.

(vi)

Conclusion

[100]

The trial judge
    properly dismissed the
Rowbotham
application and the appellant
    received a fair trial.

Ground #2: The Section 11(b) Claim (Reasons reported at: 2017
    ONSC 568)

[101]

Fifty-seven and
    one-half months passed between the arrest of the appellant and the scheduled
    completion of her trial. At the outset of her trial, the appellant brought a
    motion claiming that her right to a trial within a reasonable time had been
    violated. She sought a stay of proceedings. The trial judge dismissed the
    motion. The appellant re-argued the motion, again unsuccessfully, before the
    trial actually started.

[102]

The trial judge gave
    detailed reasons. He concluded that large parts of the total delay (57.5
    months) were attributable to the conduct of the defence and should be deducted
    from the total delay for the purposes of the s. 11(b) analysis. The trial judge
    was, however, prepared to assume the net delay remained slightly over the
    30-month presumptive ceiling set down in
Jordan
: Reasons, at paras.
    82, 126. The burden therefore shifted to the Crown to demonstrate the delay was
    not unreasonable.

[103]

The Crown relies on
    the transitional exceptional circumstance outlined in
Jordan
. That
    exceptional circumstance will apply where the delay preceded the release of
Jordan
in July 2016, and it can be inferred that the parties placed reasonable
    reliance in the conduct of the case on the law as laid down in the pre-
Jordan
jurisprudence, particularly
R. v. Morin
, [1992] 1 S.C.R. 771: see
Jordan
,
    at para. 96;
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras.
    67-69.

[104]

There is no reason to
    think the parties did not rely on the pre-
Jordan
interpretation of s.
    11(b). The question is whether the delay could be said to be reasonable under
    the analysis laid down in
Morin
. The trial judge conducted a detailed
Morin
analysis: Reasons, at paras. 84-125.

[105]

The appellant submits
    the trial judge made two errors in his
Morin
analysis. First, she
    claims he wrongly attributed certain delays to the defence. I do not accept
    that submission. Specifically, the appellant argues that much of the delay in
    the provincial court was caused exclusively by Legal Aid and/or the Attorney
    General (Civil), who were unnecessarily slow in providing funding for the
    appellants new lawyer.

[106]

There was no evidence
    of any unnecessary delay by the authorities in considering the appellants
    third request for funding. The appellant went through three lawyers before she
    got to the preliminary inquiry. She was aware that with each lawyer she fired
    it would become more difficult for her to obtain public funding for yet another
    lawyer. Her decision to unilaterally, and without warning or explanation, fire
    Mr. Rosen meant that the dates for the preliminary inquiry set by Mr. Rosen
    were lost and new dates had to be set to accommodate new counsel. This led
    directly to a delay of some 15 months. I agree with the trial judges analysis
    of the delay caused by the discharge of Mr. Rosen shortly before the
    preliminary inquiry was to commence: Reasons, at paras. 65-69.

[107]

The appellant also
    submits the trial judge failed to give adequate weight to the actual prejudice
    suffered by Ms. Teng during the delay. She was in custody throughout, sometimes
    in somewhat difficult circumstances. The appellant submits the trial judge
    wrongly took into account the appellants desire to avoid trial when assessing
    whether the delay in her trial resulted in any actual prejudice.

[108]

Again, I cannot agree.
    Surely, the exquisite agony (see
R. v. Askov
, [1990] 2 S.C.R. 1199)
    said to be experienced by persons awaiting trial cannot be attributed to
    persons who are actively engaged in an attempt to manipulate the proceedings so
    as to avoid going to trial. The trial judge correctly held that prejudice caused
    to the appellants liberty interest while awaiting trial must be assessed in
    the context of the specific circumstances, including the reason for any delays
    in bringing the appellant to trial: Reasons, at para. 111.

[109]

The trial judge
    properly dismissed the s. 11(b) application.

Ground #3: The Alleged Breach of Section 10 of the
Charter

(i)

Overview

[110]

Both the appellant and
    Mr. Wang called 9-1-1 after Mr. Wang confronted the appellant about the body he
    had found wrapped in blankets in the closet. The appellant first told the 9-1-1
    operator her husband had died several days ago. She next said he had died two
    days earlier. The appellant told the operator she did not know the cause of
    death. The appellant was still speaking to the 9-1-1 operator when two police
    officers arrived. Officer Kumar arrived first, followed shortly afterward by
    Officer Shearer. The appellant spoke to both officers separately and made brief
    statements.

[111]

At trial, the
    appellant argued the Crown had failed to prove the statements were voluntary and
    that the police had violated the appellants rights under s. 10(a) and s. 10(b)
    of the
Charter
.
Amicus
argued the statements should be
    excluded for either or both of those reasons. The trial judge rejected both
    arguments and ruled the statements admissible:
R. v. Teng
,
2017 ONSC 567
.

[112]

On appeal, the
    appellant relies only on the alleged
Charter
breaches. The rights
    created by s. 10(a) and s. 10(b) are triggered by a detention. The question is
    whether the appellant was detained when she was questioned at her apartment by
    Officer Kumar, or Officer Shearer. If she was, she was entitled to be told the
    reason for her detention (s. 10(a)), and advised of her right to retain and
    instruct counsel (s. 10(b)).

(ii)

The
    Evidence

[113]

When Officer Kumar
    arrived at the appellants apartment, the appellant and the landlord were yelling
    at each other. Officer Kumar separated the two and directed the appellant into
    the bedroom.

[114]

Officer Kumar spoke
    first with the landlord. Initially, Officer Kumar understood the problem to be related
    to landlord/tenant concerns. However, the landlord told him the appellant was
    hiding her husbands body in the storage area. Officer Kumar confirmed there
    was a body under some blankets in the storage closet.

[115]

Officer Kumars
    evidence about his state of mind as the situation unfolded and his
    understanding of the appellants status when he questioned her, was, as the
    trial judge noted, confusing: Reasons, at para. 34. According to Officer Kumar,
    finding the body in the storage closet covered in boxes was suspicious. He was
    concerned that a crime had been committed. He did not know how the husband had
    died and he did not know what role, if any, the appellant may have played. As
    far as Officer Kumar was concerned, the appellant may have been involved in his
    death, or she may have been a victim, or a witness. Officer Kumar also
    testified that the appellant would not have been allowed to leave the apartment,
    had she attempted to do so, until the police had a better understanding of the
    situation.

[116]

When Officer Shearer
    arrived, Officer Kumar was speaking with the landlord. Officer Shearer spoke
    with the appellant. Officer Shearer described the situation as chaotic. He said
    he was trying to figure out what was going on. Officer Shearer did not know
    whether any crime had been committed and he did not believe he had any grounds
    to arrest or detain the appellant. Officer Shearer asked the appellant what
    happened. In his mind, the follow-up questions were the kind of questions he
    asks when he arrives at the scene in response to a 9-1-1 call.

[117]

The appellant told Officer
    Shearer her husband had died of a heart attack the previous Friday. She said he
    had many heart attacks. The appellant also told Officer Shearer she had taken
    the body from the bedroom and put it in the storage area.

[118]

Shortly after Officer
    Shearer spoke with the appellant, Officer Kumar spoke with the appellant. He
    asked her for her identification and she produced a health card. He asked her
    what happened and she gave him much the same information as she had provided to
    Officer Shearer.

[119]

The appellant made no
    attempt to leave the apartment. It is fair to say, however, that neither
    officer would have allowed the appellant to leave after the body was found
    without first speaking with the officers.

(iii)

Was the Appellant Detained?

[120]

Not every limitation
    imposed by the police on the physical movements of an individual amounts to a
    detention for the purposes of s. 10. Detention under s. 10  refers to a
    suspension of an individuals liberty by a significant physical or
    psychological restraint:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 26, 36,
    44;
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 24, 31;
R.
    v. Mann
, 2004 SCC 52,
[2004] 3 S.C.R. 59,
at para. 19;
R.
    v. Le
, 2019 SCC 34, [2019] 2 S.C.R. 692, at para.
21.

[121]

There is no doubt that
    the appellants movements within her apartment were curtailed by the police
    after they arrived. She was placed in a bedroom to separate her from the
    landlord. One of the officers also asked her to sit at the kitchen table. She
    was seated at the table when she spoke to Officer Kumar.

[122]

The limitations on the
    appellants movements, however, occurred in the context of the police arriving
    at her apartment in response to a 9-1-1 request from both the appellant and the
    landlord. Having arrived at the scene with a dead body seemingly secreted in a
    storage room, the police were understandably attempting to control the scene
    and sort out the somewhat chaotic and very unusual situation they had encountered.
    The first order of priority for the police arriving in response to the 9-1-1
    call was not to investigate a crime, or target the appellant, but to gain
    control of the situation.

[123]

The trial judge correctly
    concluded the appellant was not physically detained by the police: Reasons, at paras.
    43-46. The police had been called to the apartment by the appellant and the
    landlord. They had to sort out the situation they encountered, at least in a
    preliminary way. To do so, the police had to gain control over the scene,
    including the appellant and the landlord who appeared to be angry with each
    other. The  police had to separate them and make inquiries about the reasons for
    their 9-1-1 calls: see
Suberu
, at paras. 29-32.

[124]

The appellant focuses
    primarily on her claim that she was psychologically detained when questioned by
    the police. The trial judge, at para. 32 of his reasons, relying on
Grant
,
    at para. 44, described psychological detention as:

[E]stablished either where the
    individual has a legal obligation to comply with the restrictive request or
    demand, or a reasonable person would conclude by reason of the state conduct
    that he or she had no choice but to comply.

[125]

There is no suggestion
    the appellant had any legal obligation to speak with the officers. The
    appellant submits, however, that a reasonable person in her circumstances would
    perceive that she had no choice but to answer the officers questions.
    Consequently, her liberty was sufficiently compromised to require the
    constitutional protections in s. 10.

[126]

Grant
, at
    para. 44, organizes the circumstances and factors relevant to whether a person
    is psychologically detained into three groups:

(a) The circumstances giving rise to
    the encounter as they would reasonably be perceived by the individual: whether
    the police were providing general assistance; maintaining general order; making
    general inquiries regarding a particular occurrence; or, singling out the
    individual for focussed investigation.

(b) The nature of the police conduct,
    including the language used; the use of physical contact; the place where the
    interaction occurred; the presence of others; and the duration of the
    encounter.

(c) The particular characteristics or
    circumstances of the individual where relevant, including age; physical
    stature; minority status; level of sophistication.

[127]

The appellant accepts
    that the trial judge properly addressed the circumstances and factors in the
    first two categories set out above: Reasons, at paras. 47-48. The appellant
    submits, however, the trial judge failed to consider two specific
    characteristics of the appellant that were relevant to how a reasonable person
    in the appellants circumstances would perceive her interaction with the
    police. The appellant contends that her rudimentary English skills and her
    status as a non-citizen were personal characteristics that should have been
    attributed to the hypothetical reasonable person when assessing whether a
    reasonable person in the appellants shoes would have felt an obligation to
    answer the questions posed by the police.

[128]

In his reasons, the
    trial judge did not refer to the appellants facility in the English language
    or her immigration status as relevant to whether she was detained when
    questioned by the police. The argument made on appeal as to the relevance of
    those factors was not raised at trial.

[129]

Although the
    submission made on behalf of the appellant focused specifically on the
    appellants English language skills and her status as a non-citizen,
[2]
I take the submission more broadly, as referring to the appellants status as a
    racialized person with less than a full command of the English language, who
    had recently arrived in this country. The appellant did not introduce social
    context evidence or ask the court to take judicial notice of any relevant
    facts. However, I will assume that in certain situations those features will be
    relevant to whether a reasonable person in the appellants circumstances would
    regard herself as obliged to comply with the directions or demands of the
    police. For example, those features could be relevant if the police encountered
    that individual on the street and asked her questions about where she lived and
    where she was going.

[130]

The encounter between
    the appellant and Officers Kumar and Shearer was, however, far removed from the
    street encounter described in the above example. The appellant called 9-1-1 for
    assistance and reported that her husbands body was in the apartment. By
    placing the call, she clearly expected and wanted the police to come to her
    house in connection with her husbands death. When the police officers arrived,
    they acted in a professional and non-threatening manner. They asked exactly the
    kinds of questions one would expect the officers to ask in that situation. In
    those circumstances, I see no basis upon which to find that the appellants
    status as a recently-arrived, racialized person, who has less than a full
    command of the English language, would have any effect on her perception of her
    interaction with the officers who arrived in response to the 9-1-1 calls.

[131]

The trial judge correctly
    ruled the statements admissible.

Ground #4: The Instruction on Circumstantial Evidence

[132]

The appellant
    acknowledges the trial judges general instructions on circumstantial evidence
    were appropriate. She submits, however, that in reference to the circumstantial
    evidence relevant to the issue of planning and deliberation, the trial judge
    failed to tell the jury that it must consider and reject other inferences
    before drawing the inference of planning and deliberation.

[133]

I see no error in the
    trial judges instructions. He told the jury:

In considering these circumstances in relation to the issue of
    planning and deliberation, you must take into account of course, that each of
    them may give rise to inferences other than the killing of Mr. Huang, other
    than that the killing of Mr. Huang was planned and deliberate.

[134]

The trial judge had
    reviewed the inferences inconsistent with planning and deliberation, both when
    explaining the concept of motive to the jury and again when outlining the
    position of the defence.

[135]

The appellant points
    out that the instruction on circumstantial evidence, as applied to
    after-the-fact conduct, stressed that the evidence could be used to infer guilt
    only if other explanations were rejected. The appellant submits that the
    absence of a similar explicit instruction in respect of the circumstantial
    evidence relevant to planning and deliberation may have led the jury to
    conclude that it could find planning and deliberation even if it did not reject
    other explanations for the evidence relied on by the Crown.

[136]

I disagree. In keeping
    with the authorities, the trial judges instruction on after-the-fact conduct,
    a kind of circumstantial evidence, stressed the need to consider other possible
    explanations before drawing the inferences urged by the Crown: see
R. v.
    Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 116-17 (per Martin J.,
    in dissent, but not on this point). The instruction did not, however, detract
    in any way from the trial judges general instructions on circumstantial
    evidence, or his instructions on how the jury should approach the
    circumstantial evidence relevant to planning and deliberation. If anything, the
    trial judges instructions on after-the-fact conduct evidence would tend to
    emphasize what the trial judge had said in other parts of his instructions
    about circumstantial evidence.

[137]

The trial judge did
    not err in his instructions on circumstantial evidence.

Ground #5: Was the Conviction on the Charge of First-Degree
    Murder Unreasonable?

[138]

The Crown alleged that
    the murder was first-degree murder because the appellant had planned and
    deliberated on the murder. The trial judge instructed the jury on planning and
    deliberation. No exception is taken to that instruction.

[139]

The appellant
    contends, however, that on the evidence, a properly instructed jury could not,
    acting judicially, reasonably conclude the Crown had established planning and
    deliberation beyond a reasonable doubt:
R. v. W.H.
, 2013 SCC 22,
    [2013] 2 S.C.R. 180, at para. 28;
R. v. Robinson
, 2017 ONCA 645, 352
    C.C.C. (3d) 503, at paras. 30-31.

[140]

There was ample
    evidence of planning and deliberation. That evidence included:

·

The appellant was the beneficiary of $1.5 to $2 million in life
    insurance she had placed on her husbands life in the five months prior to his
    death;

·

The killer took several steps to disable Mr. Huang before
    strangling him to death; and

·

Before the body had been discovered, the appellant had begun to
    move her daughter and herself into a new apartment.

[141]

The appellant argues
    that the evidence relating to the life insurance policies is in some ways
    inconsistent with the Crowns claim that the appellant had decided to murder
    Mr. Huang to collect on the life insurance policies. Arguments capable of
    refuting the Crowns case on planning and deliberation do not render a verdict
    which rejects those arguments unreasonable. In addition, some of the
    appellants arguments said to contradict planning and deliberation are easily
    answered by the evidence.

[142]

For example, the
    appellant submits, that if the appellant murdered her husband to obtain the
    life insurance proceeds, why did she wait so long to kill him after the
    policies were in place, and why did she not make a claim on those policies? The
    fact is the appellant did not wait very long. The second policy was in place
    for something less than three months before the body was discovered and the
    appellant was charged with murder. Nor can much be made for the defence by the
    failure of the appellant to make a claim on the policies, given the
    circumstances in which the body was found and the appellants arrest on a
    murder charge within five days of the discovery of the body.

[143]

Counsel also submits
    that if the appellant killed Mr. Huang as alleged by the Crown, she would be
    unable to obtain a death certificate, a prerequisite to advancing a claim under
    the life insurance policies. Counsel argues that this fatal obvious flaw in the
    appellants supposed plan to kill her husband renders a finding there was a
    plan unreasonable.

[144]

There was evidence the
    appellant had falsely told the landlord that Mr. Huang had gone back to Hong
    Kong. She told this lie before the landlord discovered Mr. Huangs body. It is
    not unreasonable to conclude, that if the appellant had murdered her husband
    and had she been able to successfully dispose of the body, she may have been
    able to produce a death certificate in due course.

[145]

The conviction on
    first-degree murder was not unreasonable.

the sentence appeal

[146]

The trial judge made
    an order under s. 743.21 prohibiting the appellant from communicating with her
    brother-in-law. Her brother-in-law and his wife have custody of the appellants
    young daughter. Under the terms of an earlier family law order, the
    brother-in-law is obliged to provide information about the appellants daughter
    to the appellant twice a year.

[147]

As I read the
    transcript, the appellant was not given any advance notice of the Crowns
    intention to seek an order under s. 743.21. When the order was sought, the
    trial judge had been forced to exclude the appellant from the courtroom because
    of her conduct. There is no suggestion he erred in doing so. However, the
    appellant had no opportunity to address the Crowns request for a s. 743.21
    order.

[148]

The order prohibited
    the appellant from communicating with her brother-in-law. The order made by the
    trial judge under s. 743.21 did not conflict with the earlier order made in the
    family law proceedings, requiring the brother-in-law to provide information to
    the appellant about her daughter twice a year. That obligation remains.

[149]

In my view, the order
    prohibiting the appellant from communicating with the brother of the person she
    murdered was not inappropriate. Section 743.21, however, allows the court to
    make an order permitting communications in conditions specified in the order.
    In my view, it would be appropriate to make the order under s. 743.21 subject
    to any order made in the family law proceedings permitting communication. It
    strikes me, that to the extent any qualification of the order under s. 743.21 is
    to be made, that qualification should be made in the best interests of the daughter.
    That determination is best made in family law proceedings.

[150]

I would vary the s.
    743.21 order in accordance with these reasons. I would ask the parties to agree
    upon the appropriate wording.

conclusion

[151]

The appeal
    from conviction is dismissed. Leave to appeal sentence is granted and the order
    is varied in accordance with these reasons.

Released: November 5, 2021  JMF

Doherty J.A.

I agree Fairburn A.C.J.O.

I agree. Sossin J.A.





[1]

The actual funding agreement is not in the record.



[2]

In their factum, counsel described the appellants English
    language skills as rudimentary. The record does not support that
    characterization, although clearly there were some limits on her ability to
    speak and understand English.


