R. v. Guo, 2021 BCPC 358

Citation: R. v. Guo 2021 BCPC 358 Date: 20211108 File No: 27765-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YINGTING GUO IRONSTONE MINING CORPORATION and TIESHI LI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. STANFORD Counsel for the Crown: N. Farinelli and S. Cassell Counsel for the Defendant: R. C. Gibbs, Q.C. Place of Hearing: Quesnel , B.C. Date of Hearing: November 8, 2021 Date of Judgment: November 8, 2021

[1] THE COURT: Thank you, everyone, for your patience. I appreciate the history and the chronology of the dates that we havebeen attending this matter. It has been going on now since September. [2] Crown seeks to proceed with this trial in Mr. Tieshi Li’s absence pursuant to s. 68(2) of the Offence Act. She relies on threeauthorities. I should indicate that counsel for Mr.

Guo, as co-accused, is not opposed to this application. [3] Crown relies on three authorities, one of which relates to a similar decision under the Offence Act and the other two cases unders. 803(2) of the Criminal Code and its predecessor, utilizing the same language and the same purpose with respect to attending andproceeding with trial in the absence of the accused. [4] The first case Crown provided is R. v. Dahlgren 2004 BCPC 95 related to a driving while prohibited under the Motor VehicleAct. In this particular case the accused did not show for trial, or attend trial virtually.

The court considered the age of the case which atthat time was two and a half years, considered the record of proceedings, and other circumstances and determined to proceed with thetrial. Ultimately the accused in this situation was acquitted. [5] R. v. Tarrant , BC CA where the accused was charged with a firearms offence under the Criminal Code. TheCrown made application to proceed in the accused’s absence under s. 738(3) which was the predecessor to s. 803.

In this case theaccused was a self-represented litigant, apparently had attended in court on earlier appearances but on the date of trial the court learnedthat he was firefighting. The case also involved out-of-town witnesses. The Court of Appeal found that the trial judge made no error inproceeding with the trial in the accused’s absence stating that s. 783(3) of the Code did not deprive the accused of a right to be presentwhen, on his own accord, chooses not to attend. The court went on to confirm that the accused’s rights are not lost by that

section of theCode when it is a result of his own conduct. [6] The third authority R. v. Yussuf 2014 ONCJ 143, involved the offence of obstructing a police officer under the Criminal Code. Again, a situation with a self-represented litigant. Mid-trial the court denied the defence request for an adjournment and following abreak in the procedure to consult legal counsel, the accused failed to return. In this case, under s. 803(2) of the Criminal Code, the courtconsidered factors including whether the Crown proceeded summarily and whether the accused failed to appear. Those conditions weremet.

The court also considered factors such as delay in the process, ”investment” of the proceedings to date, the nature of the charge andpotential consequences, and lastly, to maintain integrity in the repute of the administration of justice. In this case the age wasapproximately 19 months old.

There were three police officers who had attended as witnesses, ready to proceed at significant publiccost, as well in considering the administration of justice, the court found that the accused had failed to attend primarily because hisapplication to adjourn had been denied, and accordingly ordered the trial to proceed in absentia, indicating under the circumstances, theaccused had waived his right to make full answer and defence. [7] With respect to Mr.

Li’s non-attendance today, under s. 802 of the Criminal Code an individual charged under any statute has aright to attend his trial to make full answer and defence. He is also obligated to attend his trial in person under s. 715.21 under the Code. [8] As early as September 28th, 2021 when Mr.

Li’s counsel applied to withdraw as his lawyer, five to six weeks before trial, Mr.Li, appearing via MS Teams, indicated through his independent legal counsel that he had no intention of returning to Canada because offinancial interests that he had in China. [9] On September 29th, after a full hearing on his then counsel’s application to withdraw as counsel, and prior to the decision, hedischarged his counsel and sought to adjourn the trial. [10] On October 4th, I dismissed his adjournment application as Mr. Li’s reasons for that adjournment was still based on his financialinterest to collect a debt in China.

I ordered him to attend court in person on his trial date. [11] November 1st was a pretrial conference. Mr. Li applied to attend his trial via MS Teams from China. He indicated that he wasunable to leave China due to a Chinese court enforcement order related to a debt that he owed as a result of a civil dispute. I denied hisapplication to attend by MS Teams and ordered he attend his trial in person. [12] November 5th, I allowed Mr.

Li to submit further documents that supported his submissions with respect to the Chinese courtorder; however, I did not change my order of November 1st and re-affirmed that he was required to attend court in person at his trialcommencing November 8, 2021. [13] In reviewing Yussuf I find it of assistance in terms of the conditions or factors that I should consider in determining to proceed inabsence of an accused. With respect to the factors related to whether crown is proceeding summarily and whether Mr.

Li has notattended his trial, he has been charged with offences under statutes where the penalty ranges from a fine to six months jail, which issimilar to a

summary offence under the Criminal Code. With respect to his non-attendance, on November 8, 2022, the first day of trial,this matter was called at 10:11am, court. Mr. Li was paged, his presence in the courthouse was checked by the Sheriff. It was confirmedthat he was absent without explanation. [14] Mr. Li has been been clearly aware of today’s date since the trial date was scheduled March of 2021, and subsequent pre-trials with and without counsel. He was advised and aware on September 29th, 2022, that with or without counsel he would have to attend in person.

He was reminded of that, indeed directed, on October 4th, November 1st, and confirmed again on November 5, 2022, of his obligation to attend his trial on November 8th. [15] The offence is alleged to have occurred in June 2017. The Information was sworn on May 2020. I note there has already beensome delay in setting trial dates due to Mr. Li’s change of counsel twice prior to scheduling the trial in March 2021. [16] With respect to the investment in the proceedings to date, this matter is a special sitting in Quesnel and has been booked in the

larger Supreme Court courtroom to accommodate all of the parties, including an interpreter. There is a co-accused with counsel who has made efforts to attend all appearances, either through agents or personally. There is an interpreter who has also attended all appearances on this matter. Crown advised me they intend to call six witnesses, three are from out of town and ready to proceed. I note also that Crown, defence counsel, the co-accused and the interpreter are all from out of town and that there have been multiple appearances since September prior to this date.

So in conclusion on that point, that there has been significant investment up until this date and then moving forward. [ 17 ] The nature of this charge, as I have already indicated, ranges from a fine of $200,000, (I am told by Crown), to six months in jail and I will note that three statutes have alleged to have been breached in the Information. [ 18 ] With respect to the need to maintain integrity and the repute of the administration of justice, since September 2021 after discharging his third lawyer within approximately five weeks before the trial, in my view, Mr.

Li has attempted on numerous occasions to frustrate the trial process. This has been through adjournment applications and applications to attend by Teams in the face of his clear stated intention as early as September, not to attend this trial due to chasing down a debt in China. Followed by a further effort in an application to remain in China due to an order from a Chinese court that he not be permitted to travel that he has known about since 2018, but not raised until days before the trial. [ 19 ] Mr.

Li has been represented by counsel in the relative early stages of the proceedings and has had time to make any and all of these applications since his first appearance when he had counsel. I am satisfied he has known that he needed to attend the trial today since March 2021, which would have left him a significant period of time to properly apply for an exception to this travel prohibition from the Chinese court, yet he failed to do that and all further applications have been within the last five weeks prior to trial. [ 20 ] As a result, I find that Mr.

Li’s efforts have been intentional to frustrate proceeding with trial and that his absence today is entirely voluntary. I am obligated to ensure a fair trial for Mr. Li and Mr. Guo. I find that Mr. Li has effectively waived his right to make full answer and defence, and that failing to proceed under these circumstances would bring the administration of justice into disrepute. Accordingly, I order that the trial proceed in his absence. (JUDGMENT CONCLUDED)