



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)  Subject to this section, no
    person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

111(1)  Subject to this section, no
    person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)  Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. P.C., 2015
    ONCA 30

DATE: 20150121

DOCKET: C56813

Doherty, Lauwers JJ.A. and Speyer J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

P.C. (a young person)

Appellant

John R. Mann III, for the appellant

Eric Siebenmorgen, for the respondent

Heard: December 19, 2014

On appeal from the conviction entered on September 27,
    2012 and the sentence imposed on March 1, 2013 by Justice Anne M. Molloy of the
    Superior Court of Justice, sitting with a jury.

Lauwers J.A.:

[1]

The appellant was convicted of manslaughter in relation to the beating
    death of 20-year-old Jin Tao Zhu. The appellant was 15 years of age at the time
    of the offence. He did not dispute that he was part of the group of men
    responsible for the beating, but denied both that he had prior knowledge of a
    plan to assault the victim and that he was a willing participant. The appellant
    also denied that he unlawfully confined the victim at the ringleaders home.
    The appellant asserted the defence of duress.

[2]

For the reasons set out below, I would dismiss the conviction appeal. The
    appellant abandoned the sentence appeal.

A.

FACTS

[3]

The ringleader of the assault, Xiao Ming Chen (Xiao), was angry with
    the victim over a romantic rivalry. On February 14, 2010, Xiao told his friend,
    Peng Ren (Peng) that he would find the victim and beat him up. Xiao wanted to
    give [the victim] a lesson. According to the appellant, Xiao called the
    appellant and demanded he come out to meet him, threatening that if he did not
    comply, Xiao would bury him. The appellant took this statement to be a threat
    of violence, which he took seriously since he claimed Xiao had beaten him other
    times in the past. The appellant joined Xiao and Peng at a restaurant.

[4]

Xiao telephoned the victim and discovered he was at a bar with the woman
    Xiao liked. Another friend, Zhao Hui Chen (Zhao), picked Xiao, Peng and the
    appellant up and drove them to the bar where the victim was located. Xiao asked
    the victim to join him outside, and told the woman who was with the victim to
    go home by taxi. Xiao, Peng, Zhao, the appellant and the victim then got into
    the car and drove to a park near the lakeshore. Zhong Rong Zheng ("Zhong")
    joined the group at the park at some point after the beating had commenced. The
    appellant claimed that he himself had been driven to the same park and beaten
    by Xiao a month earlier.

[5]

The appellant testified that Xiao took a stick from the trunk of the
    car and began beating the victim with his fists, the stick and a rock. The
    appellant claimed he attempted to step in to prevent the beating, but that Xiao
    grabbed his collar and threatened to beat the group if they did not participate
    in the assault. They complied, but the appellant claimed he gave only slight
    slaps with the palm of his hand that did not contribute to the victims
    injuries. The victim did not fight back.

[6]

When the beating stopped, the victim could not walk properly and was
    helped to the car. The appellant climbed into the trunk, upon Xiao's request. The
    appellant testified that, from the trunk, he overheard the victim tell Xiao he
    wanted to go home. Xiao refused, saying he was worried the victims family
    would call the police. The victim was taken to Xiaos residence. The appellant
    claimed that, along with others, he helped the victim upstairs and into a bed
    in one of the bedrooms. The appellant then went home.

[7]

The appellant testified that he was afraid for the victim when he left
    him at Xiaos residence, thinking Xiao might beat him again, but also said
    inconsistently that he did not think the victim was in danger. He did not call
    the police or seek medical help for the victim, claiming that Xiao had
    threatened to kill the group if they did not keep quiet.

[8]

The victim died during the night at Xiaos house. The pathologist testified
    that the cause of death was internal hemorrhaging from blunt force injuries,
    and that the victim likely would have survived had he received medical
    attention. When Xiao found the body the next morning, he contacted the police
    and sought medical attention for the victim. Xiao cooperated with the
    investigation.

B.

Procedural History

[9]

The four other participants in the assault  Xiao, Peng, Zhao and Zhong
     were adults at the time of the offence. They were charged with first degree
    murder. Because the appellant was under 18 years of age at the time of the
    offence, under the
Youth Criminal Justice Act
, S.C. 2002, c.1, he
    could not be tried together with the adult accused.

[10]

The
    Crown issued a subpoena to compel the appellant to testify at the preliminary
    hearing for the adult accused other than Zhong, since Zhong had already pleaded
    guilty to aggravated assault. Defence counsel brought an application in the
    Superior Court of Justice to quash the subpoena. Justice Code dismissed the
    application, with reasons reported at 2011 ONSC 1824, 231 C.R.R. (2d) 215. He
    held that the appellant had relevant evidence in relation to the adult accused
    that the Crown could reasonably seek to adduce at the preliminary hearing.
    Further, the Crown had provided an undertaking to examine the appellant only in
    relation to the case against the adult accused and not for the purpose of
    discovering either additional evidence against the appellant or his potential
    defences. Justice Code also pointed out that the appellant's evidence from the
    preliminary hearing would be protected from the Crowns subsequent use and derivative
    use under ss. 13 and 7 of the
Canadian Charter of Rights and Freedoms
,
    respectively. Finally, Code J. noted that the Crown already knew the general
    nature of the appellants trial defence, namely the absence of intent and the
    defence of duress.

[11]

The
    appellant appealed and sought a stay of Code J.s decision. Justice Rosenberg
    of this court dismissed the stay application on the basis that the Crown had a
    legitimate public purpose for calling the appellant as a witness, and that
    there would be no irreparable harm to the appellant given the protections
    afforded to him by the
Charter, the Youth Criminal Justice Act
, s. 5
    of the
Canada Evidence Act
, R.S.C. 1985, c. C-5, the undertaking given
    by the Crown and the supervisory powers of the preliminary hearing judge.

[12]

The
    appellant testified at the preliminary hearing of the three adult accused in
    March 2011. All of the adult accused eventually pleaded guilty, variously, to
    second degree murder (Xiao), manslaughter (Peng and Zhao) and aggravated
    assault (Zhong).

C.

Crown and Defence Trial Positions

[13]

The
    Crowns case was that the appellant aided and abetted in the assault on the
    victim and in his forcible confinement at Xiaos residence after the assault,
    and that this materially contributed to the victims death. The Crown also
    argued that, in taking these actions, the appellant had the requisite
mens
    rea
to have aided and abetted in the murder. The appellant was therefore
    guilty of murder as a party to the offence under s. 21(1)(b) of the
Criminal
    Code
.

[14]

The
    appellants trial position was that he did not intend to assist Xiao in beating
    the victim or in confining him and that he was under duress throughout the
    events at issue. The appellant testified that he pretended to beat the victim
    with slight slaps, and that his only purpose in assisting the victim to bed
    at Xiaos house was so [the victim] could rest. Defence counsel submitted
    that the evidence established that the appellant had no intent to assist
    anyone, in particular [Xiao], in the causing of bodily harm to the victim. The
    trial judge put this defence position to the jury.

D.

ISSUES

[15]

The
    appellant raises a number of issues that can be conveniently grouped under the
    following headings: violations of the appellants right to silence; flaws in
    the jury instruction; and the admission of the guilty pleas by the adult
    accused. The appellant asserts that these errors rendered his trial unfair and
    the jurys verdict unreasonable.

E.

Analysis

[16]

The
    jury acquitted the appellant of murder and convicted him of manslaughter. Their
    verdict indicates that while the jury was satisfied that the Crown had proved
    the appellant was a party to an unlawful act (assault and/or unlawful
    confinement) that materially contributed to the victims death, the jury was
    not satisfied that the Crown had proved the appellant had the
mens rea
necessary to make him a party to murder.

(1)

Was the Appellants Right to Silence Violated?

[17]

The
    appellant did not provide a statement to the police. In the pre-trial
    application to stay the prosecution, defence counsel argued that the
    appellant's right to silence was violated when he was compelled to testify at
    the preliminary hearing for three of the adult accused, and that this
    automatically rendered the upcoming trial unfair. The trial judge rejected the
    application, with reasons reported at 2012 ONSC 5657, on the basis that:

In this case, there was no misconduct by the Crown and no
    breach of its undertaking. The Crown received no information that assisted in
    the preparation of the case against P.C. and obtained no advantage as a result
    of his testimony. Further, there has been no unfairness to P.C. as a result of
    his testimony at the preliminary hearing. There has been no injury and no
    wrong, and hence no right to any remedy, much less a stay of proceedings.
    (Para.17)

[18]

On
    appeal, the appellant argued again that his right to silence had been violated.
    This argument is based on two specific complaints in relation to the
    cross-examination of the appellant by the Crown. The first is that the Crown
    breached its undertaking not to use any new information disclosed by the
    appellant in his testimony at the preliminary hearing against him at his own
    trial. The second complaint is that, in relation to the duress defence, the
    Crown improperly su
gg
ested that the
    appellant had

re
c
ently

f
a
bric
a
ted

evidence

about
his
con
c
ern

f
or his famil
y.
I will also address the appellant's
    more general argument that his testimony at the preliminary hearing precluded
    the Crown from challenging his credibility.

(a)

Did the Crown Use the Appellants Preliminary Hearing Testimony
    Improperly?

[19]

The
    appellant testified that after the beating, he accompanied the victim and the
    adult accused to Xiaos home. As noted, the appellant rode in the trunk of the
    car and overheard a conversation between Xiao and the victim. The appellant
    argues that the Crown improperly questioned the appellant about what he heard
    from the trunk, based on the following exchange:

Q. Okay. You
    can hear the conversation in the car?

A. Yes.

Q. Sure you
    can. You heard [the victim] say, I want to go home?

A. Yes.

Q. And you
    heard [Xiao] say, No, because your sisters will see your injuries and the
    police will be called, correct?

A. And it
    seemed that he said if [the victim] was sent back home, he was afraid that his
    family would call police.

[20]

The
    effect of this testimony was to fix the appellant with knowledge that the
    victim was being held against his will, thereby establishing an element of
    forcible confinement.

[21]

The
    appellant submits that the questions in this exchange were improper leading
    questions, either because they drew on the appellants preliminary hearing
    evidence or because they did not flow from his examination-in-chief. Had the
    appellant answered in the negative, the appellant asserts that the Crown could
    not have impeached the appellant using his preliminary inquiry testimony due to
    its undertaking. As a result, there was no good faith basis for the Crowns
    questions.

[22]

The
    appellant takes particular issue with the leading question that the appellant
    could overhear the conversation in the car from his position in the trunk,
    something he denied in his preliminary hearing testimony. The appellant makes
    similar arguments regarding evidence about the timeline of the evening
    including when the appellant became aware of Xiaos plan to attack the victim, how
    the victim was set up for the assault, the degree of the appellants
    participation in the assault, and the evidence that Xiao struck the victim with
    a rock and forced him to roll in the snow.

[23]

There
    is no merit to these arguments. While the appellant was protected against the
    use of his preliminary hearing testimony under s. 13 of the
Charter

and
s. 5 of the
Canada Evidence Act
and against the use of evidence derived from his preliminary hearing testimony
    under s. 7 of the
Charter,
t
he
    impugned cross-examination did not violate any of these prohibitions.

[24]

The
    Crown became aware of the appellants knowledge that the victim would be beaten
    through the appellants sisters witness statement, which she provided before
    the preliminary inquiry. The photographs of his knuckles were taken by the
    investigating officers on the night of his arrest, countering the appellants
    assertion that his blows against the victim were minimal. The appellant
    revealed his ability to overhear the conversation in the car from his position
    in the trunk during his examination-in-chief. Similarly, the other portions of
    the cross-examination attacked by the appellant were variously based on the
    police investigation, the appellants examination-in-chief, the evidence given
    by Peng and Xiao at the appellants trial and other information the Crown
    already possessed. These questions were not based on the appellants
    preliminary hearing evidence.

(b)

The Allegation of Recent Fabrication

[25]

The
    appellants second complaint is that his right to silence was violated by
the Crowns
su
gg
estion in cross-examination that the appellant had somehow
testified in the past and had
re
c
ently

f
a
bric
a
ted
his
evidence

about
his
con
c
ern

f
or
    his famil
y as part of the duress defence.

[26]

This argument is based on the following exchange
:

Q.

The

first time
y
ou
'
ve

mentioned,

sir,

conc
e
rn

about

y
our

f
a
mily

is

when

y
ou
'
ve

testified
th
i
s
m
o
r
n
in
g
;
i
s
n
'
t
t
ha
t

c
o
r
r
e
c
t?

A.
C
on
cer
n
e
d
a
bout my

fa
mil
y?

Q.

The

first

time

y
ou

mentioned

any

conc
e
rn

about

y
our

f
a
mily

being

taken

to

the

L
akesho
r
e
    and be
a
ten by

Xiao Ming

Chen is
    this
m
orning

when
y
ou
'
ve testified.

A.

I

s
a
id
t
h
a
t

I

w
a
s
w
o
r
r
ie
d

t
h
a
t
X
i
a
o
M
ing

Ch
e
n

w
o
u
ld

n
ot

be

d
o
ing

a
n
y
th
i
ng

g
o
o
d

to
m
y
fa
mil
y.

Q.

T
h
e

f
i
r
s
t

t
i
me

y
o
u
've

men
t
io
n
e
d

t
h
a
t,

s
i
r
,

is

th
i
s

m
o
r
n
ing

w
h
e
n

y
ou

t
e
st
i
f
ie
d

to

t
r
y

to
e
xpl
a
in
y
o
u
r
a
c
ti
o
ns

f
o
r
g
oi
n
g

o
u
t
w
ith

him

th
a
t n
i
g
ht.

[27]

The

trial

judge

immediately

excused

the

j
ury
    after this exchange and

cautioned

the

Crown:


Y
o
u
'
r
e

v
e
r
y
c
lo
s
e

t
o

s
uggesti
n
g

th
a
t

[the
    appellant]

di
d

n
o
t

t
e
ll
people

this

befo
r
e.

[From
    the perspective of

a

ju
r
or]

I

don
'
t

know

if

he

did

or

did

not.

I

don
'
t

know.

I

don
'
t

know

if

he
g
a
v
e

a

st
a
t
e
m
e
n
t

t
o

p
ol
ice
,

a
n
d

h
e

t
e
st
i
f
ie
d

b
e
f
o
r
e

u
n
d
e
r

s
u
b
p
o
e
n
a
.


[28]

The
    Crown explained to the trial judge that this questioning referred only to the
    fact that the appellant did not mention the possible threat to his family in his
    earlier examination-in-chief during his trial. The trial judge warned the Crown
    to be careful, but declined to provide a cautionary instruction to the jury on
    the basis that the Crowns questioning approached but did not cross the line of
    propriety.


[29]

Given
    the brevity of the impugned exchange, I would not interfere with the trial
    judges assessment of how best to address it
.

(c)

The General Argument

[30]

Finally,
    the appellant made a more general argument that since the Crown had called the
    appellant as its witness at the preliminary hearing for the adult accused, the
    Crown was precluded from challenging the appellants credibility at his own
    trial by means of cross-examination. Counsel did not refer the court to any
    supporting authority for this argument.

[31]

I
    would reject this argument. Apart from the absence of precedent, there is no
    support in principle for this approach. To the contrary, this argument is quite
    inconsistent with the operation of the
Youth Criminal Justice Act
, ss.
    7 and 13 of the
Charter
and s. 5 of the
Canada Evidence Act
,
which afforded the appellant
    significant protections related to his preliminary hearing testimony, but did
    not render him immune from prosecution or from appropriately limited
    cross-examination when he chose to testify at his trial: see
R. v. S.
    (R.J.)
, [1995] 1 S.C.R. 451.

(2)

Flaws in the Jury Instructions

[32]

The
    trial defence, as explained in the appellants factum, had two stages:

The first stage: Prior to considering the defence of duress in
    any way, P.C. had no intent to assist or aid murder or manslaughter pursuant to
    s. 21(1)(b) party liability. The second stage: Nevertheless,
if
the Jury
    found P.C. guilty as a party before considering any duress facts, was his guilt
    then
excused
by the defence of duress.

[33]

The
    appellant asserts that the trial judge made errors in her jury instruction at
    both stages. Since duress was raised as a defence, the trial judge had to
    explain the required mental element for aiding and abetting and the defence of
    duress, which operates only after the Crown proves the requisite mental element
for aiding and abetting
. Because the
    jury convicted the appellant of the included offence of manslaughter rather
    than second degree murder, this courts concern is with the aiding and abetting
    instruction specifically as it relates to manslaughter. The jury instructions
    specific to murder are not germane in light of the verdict.

(a)

The Aiding and Abetting
Mens Rea

Instruction

[34]

The
    trial judges jury instruction on the mental element for aiding and abetting
    manslaughter used language that faithfully tracked s. 21(1)(b) of the
Criminal
    Code
and the Supreme Court of Canadas decision in
R. v. Hibbert
,
[1995] 2 S.C.R. 973. I see no error in
    that instruction.

(b)

The Duress Instruction

[35]

The
    appellant argues that the trial judge erred in her jury instruction on duress. The
    Crown concedes that there was an air of reality to the duress defence on the
    evidence and that it was appropriate for the judge to instruct the jury on the
    defence. (The Crown also accepts, for the purpose of this appeal, that the
    common law duress defence is available to a charge of being a party to murder,
    although this specific issue is on reserve in another case before the
    court.)

[36]

The
    jury charge in this case predates the decision of the Supreme Court of Canada
    in
R. v.
Ryan
,

2013 SCC 3, [2013] 1 S.C.R. 14. Unsurprisingly, the charge is not
    organized precisely in accordance with the scheme of the duress defence as set
    down in that decision.

[37]

Counsel
    for the appellant, however, points to only one specific error in the duress
    instruction that follows from
Ryan
. He argues that
Ryan

established
    that the threat of future harm is a viable basis for the duress defence, and
    that the trial judge erred by failing to explain this in her charge to the
    jury. But this assertion is not correct. The trial judge specifically referred
    to the risk of future harm when she said: The threat must be of a specific
    kind. It must threaten that P.C.
will be
killed or
    suffer serious bodily harm. [Emphasis added.]

[38]

In
    her review of the evidence, the trial judge referred to all of the evidence related
    to the threats and left the duress defence to the jury. In my view, this
    instruction sufficiently conveyed that threats of future harm fall within the
    scope of a duress defence. As a result, I find no error in the trial judges
    duress instruction.

(3)

Evidence of the Guilty Pleas of the Other Accused

[39]

As
    noted, the adult accused eventually pleaded guilty, variously, to second degree
    murder (Xiao), manslaughter (Peng and Zhao) and aggravated assault (Zhong).
    Xiao and Peng testified at the appellants trial, while Zhao and Zhong did not.
    One issue at trial was how the guilty pleas and convictions of the adult
    accused should be addressed.

[40]

I
    agree with the Crowns submission that the trial judge correctly permitted the
    Crown to adduce evidence of Xiao and Pengs guilty pleas, particularly given
    defence counsels refusal to undertake to refrain from cross-examining on their
    pleas and convictions. The pleas and convictions were relevant to Xiao and
    Pengs credibility as witnesses, and the Crown understandably wanted to elicit
    this information instead of having it disclosed as a possible surprise during
    their cross-examination by defence counsel. Zhao and Zhongs pleas were not
    introduced at the appellants trial since they were not witnesses.

[41]

The
    trial judge provided the following explanation of the process of entering pleas
    and convictions in her jury charge:

At the time a guilty plea is taken, there is an inquiry before
    a judge as to the facts upon which that plea is based, and the judge must be
    satisfied that those facts support a conviction in respect of the charge to
    which the plea is entered.

[42]

This
    explanation was unnecessary
and potentially
    prejudicial. The potential for prejudice lay in the fact that the jury might
    interpret this instruction as providing a judicial endorsement
that
    Xiao and Pengs pleas should be given more weight. As the Crown acknowledged on
    appeal, the details of this excerpted explanation had no relevance to any of
    this jurys tasks. There was no reason for the trial judge to address this
    matter with the jury and she should not have done so.

[43]

The
    trial judge went on to make it clear that Pengs guilty plea to manslaughter
    had no relevance to the appellants guilt. However, she said something quite
    different about Xiaos guilty plea and conviction for second degree murder. The
    trial judge explained that the determination that Xiao had committed murder was
    the logical first step in deciding whether the appellant had aided and abetted
    Xiao in committing an unlawful act. She told the jury they could use that plea
    and conviction to conclude that Xiao had committed murder.

[44]

The
    trial judge erred in law when she told the jury that it could use Xiaos guilty
    plea and conviction as evidence against the appellant. See
R. v. Simpson
,
    [1988] 1 S.C.R. 3;
R. v. MacGregor
(1981), 64 C.C.C. (2d) 353 (Ont.
    C.A.);
R. v. Pentiluk

(1974), 21 C.C.C. (2d) 87 (C.A.), at 92.

[45]

Xiaos
    guilty plea was no more than hearsay evidence that Xiao had committed murder,
    and could not be considered in determining the appellants guilt. In
R. v.
    MacGregor,
Martin J.A. said, at pp. 357-58:

Admittedly, it was error for the trial Judge to fail to
    instruct the jury that in considering the case against the appellant they
    should disregard the pleas of guilty of manslaughter by the co-accused and that
    those pleas were not in any way to be taken into account in considering the
    case against the appellant.

[46]

This
    statement of the law was adopted by the Supreme Court in
R. v. Simpson
.
    However, the court also adopted Martin J.A.s position in
MacGregor
,
    at p. 358, that this type of error is not necessarily fatal unless it causes
    prejudice to the accused.

[47]

This
    misdirection could have been significant had the jury convicted the appellant
    of murder. However, because the jury convicted the appellant of the included
    offence of manslaughter, I am satisfied that the error caused no substantial
    wrong or miscarriage of justice.

[48]

To
    convict of manslaughter, the jury had to be satisfied that the appellant aided
    or abetted in an unlawful assault and/or unlawful confinement that caused
    death. To reach these conclusions the jury did not have to be satisfied that
    Xiao was guilty of murder, but only that he had unlawfully caused the victims
    death. It was central to both the defence and the appellants cases at trial
    that Xiao had assaulted and confined the victim and that this caused the
    victims death. The jury had no need to resort to Xiaos guilty plea to make
    that finding. I observe that Xiao also testified and the jury had ample
    opportunity to take his measure quite apart from his guilty plea. Given the
    manslaughter verdict, it can be safely said that the evidence of Xiaos murder plea
    and conviction did not play a role in the jurys verdict.

[49]

Since
    the jury therefore started from the fact that Xiao had unlawfully caused the
    victims death, the trial judges reference to Xiaos murder plea caused the
    appellant no prejudice. Xiaos liability for murder, as opposed to his accepted
    liability for the unlawful acts that caused death, is irrelevant given the
    manslaughter verdict. Since the jury convicted the appellant of manslaughter,
    it is unnecessary to consider the adequacy of any instructions as to how the
    jury might have moved beyond that accepted premise to the further finding that
    Xiao was guilty of murder.

[50]

Examined
    contextually, the trial judges erroneous instruction concerning the guilty
    pleas did not cause any substantial wrong or miscarriage of justice.

F.

CONCLUSION

[51]

The
    appellants arguments that violations of the appellants right to silence,
    errors in the jury charge, and the admission of evidence of guilty pleas by the
    adult accused rendered his trial unfair and led to an unreasonable verdict are
    unfounded.

G.

Disposition

[52]

I
    would dismiss the appeal.

Released: January 21, 2015 D.D.

P.
    Lauwers J.A.

I
    agree Doherty J.A.

I
    agree C.M. Speyer J. (
ad hoc
)


