2013 NBCA 7, 2013 NBCA 7

COURT OF APPEAL OF NEW BRUNSWICK 56-12-CA YUE MING CHEN APPELLANT YUE MING CHEN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Chen v. R., 2013 NBCA 7 Chen c.

R., 2013 NBCA 7 CORAM: The Honourable Justice Turnbull The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Provincial Court: January 24, 2012 Appel d’une décision de la Cour provinciale : Le 24 janvier 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 21, 2012 Appel entendu : Le 21 novembre 2012 Judgment rendered: January 17, 2013 Jugement rendu : Le 17 janvier 2013

Counsel at hearing: For the appellant: Yue Ming Chen appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant Yue Ming Chen a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The appeal against conviction and the application for leave to appeal the sentence are dismissed. LA COUR Rejette l’appel de la déclaration de culpabilité et la demande d’autorisation d’interjeter appel de la peine. The following is the judgment delivered by THE COURT I.

Introduction [ 1 ] On January 24, 2012, a judge of the Provincial court convicted Yue Ming Chen of abducting his child in contravention of a custody order made by a judge of the Court of Queen’s Bench, Family Division, contrary to s. 282(1) of the Criminal Code . On April 16, 2012, the judge sentenced Mr. Chen to a three-month conditional sentence, six months probation and subjected him to certain ancillary orders. Mr. Chen appeals his conviction and seeks leave to appeal the sentence.

For the reasons set out below, we dismiss both the appeal against conviction and the application for leave to appeal the sentence. II. Background [ 2 ] On February 10, 2010, a judge of the Court of Queen’s Bench, Family Division, issued an order effective February 1, 2010, which granted sole custody of the child of the marriage to the mother. The child was six years of age at the time. Pursuant to the order, Mr. Chen had access to the child under very strict and detailed conditions. The first of the access periods was to occur on the weekend of February 19, 2010, commencing Friday at 6:00 p.m.

The child was to be returned to the mother by 6:00 p.m. Sunday, February 21, in Amherst, Nova Scotia, at a mutually agreed upon location. [ 3 ] The father picked his daughter up at the appropriate time but did not return her as ordered. The child was eventually found in Toronto by the Toronto Police Force, on Monday, February 22, 2010, after receiving notification from the R.C.M.P., Oromocto Detachment. Officers from Oromocto had been in contact with Mr. Chen via telephone. The child was returned to her mother without incident on Tuesday, February 23, 2010. [ 4 ] When apprehended by the Toronto Police Force, Mr.

Chen was found to have the following items in his possession: ➢ An itinerary for a flight to Vancouver for himself and his daughter on February 27, 2010.

➢ A boarding pass for a flight to Fredericton ➢ Cash in the amount of $4,750 Canadian currency ➢ Cash in the amount of $770 American currency [ 5 ] Mr. Chen told police he had taken his daughter to Toronto to visit friends he had not seen for a number of years. He advised they had travelled by bus as it was less expensive and more comfortable. Mr. Chen explained to police it had taken much longer to travel to Toronto than he had realized, and it was not until they arrived in Toronto that he became aware he would not be able to return the child to her mother on time.

He said he called the mother to explain and made arrangements to return to Fredericton on the first available flight. The first available flight was Tuesday, February 23, due to inclement weather. According to Mr. Chen, he had not intended to deprive the mother of her possession of the child as provided in s. 282(1) of the Criminal Code ; he had merely exercised poor judgment in attempting to visit friends in Toronto within the time period provided for in the custody and access order. [ 6 ] When the R.C.M.P. were initially contacted respecting the failure of Mr.

Chen to return the child at the required time, they attended at Mr. Chen’s residence and discovered “For Sale” and “Sold” signs located on the property. The mother had attempted to contact Mr. Chen and their daughter during the weekend using the home phone number Mr. Chen had provided. On Saturday, February 20, she called and an answering machine responded to the call. She called several more times on Sunday, February 21, and the number had been disconnected. The mother says when Mr. Chen had not returned their child at the time required, Mr.

Chen called her and advised he was in Ottawa, his van had broken down, he could not return the child on time and he would call in a “day or two”. Mr. Chen’s brother also advised the police that Mr. Chen was in Ottawa. A. Trial and sentence [ 7 ] On February 23, 2010, Mr. Chen was taken to court and then remanded. He was released on February 24, 2010, on conditions. On March 22, 2010, he elected the jurisdiction of the Provincial Court and pled not guilty. A trial was scheduled for September 22, 2010. The matter was adjourned a number of times and the trial was held on October 20, 2011, and December 16, 2011. Mr.

Chen was represented by counsel at the trial, and at no time requested the assistance of an interpreter. [ 8 ] On January 24, 2012, the trial judge issued her decision. She made many findings of fact and discussed Mr. Chen’s lack of credibility at length. In the end, the judge found Mr. Chen guilty. Mr. Chen was sentenced on April 16, 2012, to serve a three-month conditional sentence pursuant to s. 742.1 of the Criminal Code . Following the completion of the three- month conditional sentence, Mr. Chen was placed on probation for six months. III.

Issues raised on appeal [ 9 ] Having regard to the broad-ranging grounds of appeal advanced by Mr. Chen, we have distilled the following alleged errors:

(1) The trial judge erred in law by failing to provide an interpreter to both Mr. Chen and his former spouse, as their first language is not English.

(2) The trial judge erred in fact by misapprehending the sequence of events that led to the charge.

(3) The trial judge erred in fact by ignoring evidence that had been adduced in Mr. Chen’s favour.

(4) The trial judge erred in fact by misapprehending the evidence presented at the trial.

(5) The trial judge lacked objectivity in her determination. IV. Motion for Court appointed counsel [ 10 ] At the outset of the hearing, Mr. Chen made a motion to have counsel appointed to represent him under s. 684 of the Criminal Code . The panel declined to do so for the following reasons. [ 11 ] This Court has recently pronounced upon the use of s. 684 in Smith v. R ., 2012 NBCA 99 , [2012] N.B.J.

No. 410 (QL) , where Drapeau C.J.N.B. states: The Court’s power under s. 684 is contingent upon it appearing desirable in the interests of justice that an appellant, whose indigence has been established, should have legal assistance. As a general rule, that will be so only in instances where the appeal’s complexity, whether factual or legal, causes the Court or one of its judges to conclude: (1) it is unlikely the appellant will be able to make the case for intervention; and (2) the assistance of counsel is required for the panel to properly exercise its reviewing function.

It should go without saying, but there is merit in underscoring the obvious: taxpayers foot the bill for any assignment of counsel under s. 684 . That consideration coupled with the nature of the proceedings, the fairness obligations of Crown counsel and the panel members’ impartiality, knowledge of the law and experience goes a long way in explaining and justifying the exceptionality of s. 684 orders. [para. 7] [Emphasis in original.] [ 12 ] In our view, this case is not complex. The issues were identified by Mr. Chen and we do not require the assistance of counsel to determine the matter.

As such, we declined to exercise our discretion under s. 684 of the Criminal Code to appoint counsel on Mr. Chen’s behalf. A. Lack of interpreter [ 13 ] Mr. Chen contends his rights were breached, as the trial judge did not have an interpreter present for the trial. Mr Chen says that neither he nor his former spouse possess the appropriate level of fluency in English to participate in a trial conducted in English. Although Mr. Chen is not specific in his allegation, one could conclude he believes his s. 14 Charter rights were breached. That

section reads: Interpreter 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. Interprète 14. La

partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète. [ 14 ] In R. v. Johal , 2001 BCCA 436 , [2001] B.C.J. No. 1404 (QL) , the Court held that, as with any Charter right, the onus is upon the accused to prove, on a balance of probabilities, that the right has been breached. As with any breach of a Charter right, the onus is on the accused under s. 14 to establish, on a balance of probabilities, that his or her rights have been breached.

In the case of s. 14, the first requirement which the accused must satisfy is that he or she was in need of

interpretive assistance. It is this requirement which is at issue in this appeal. [para. 15] [ 15 ] As Crown counsel aptly states in his written submission: “This is a burden, […] that the Appellant cannot meet in this case. This is so, in part, because the evidence shows that the Appellant is, in fact, an interpreter (see trial transcript page 150, line 14-16)”. Regardless, the test is not complex and involves a factual determination of the accused’s capabilities in English. A review of the record reveals that Mr.

Chen did not at any time request the assistance of an interpreter, and Crown counsel at the trial established that Mr. Chen understood what was transpiring. For example: CROSS-EXAMINATION BY MR. HAWKINS: Q. Now Mr. Chen, you used to be an interpreter for courts in New Brunswick, is that not right? A. Yes, that's my part time job. Q. Okay. So you feel that you're good enough in speaking and writing the English language that you can interpret up to the standard that's required in a courtroom, your understanding of English is that good, isn't it? A.

It's quite good but nobody's English is perfect, even your first language English I can still ask you some words, some words you don't understand English. [Trial transcript, p. 150, lines 13-23, October 20 th and December 16, 2011] [ 16 ] At the sentencing hearing the trial judge stated: THE COURT: […] I took particular effort to delineate the reasons for my decision and to point out the discrepancies in Mr. Chen's testimony, which had nothing to do with any language difficulties. Mr. Chen is an effective speaker of English and understood the questions and responded to the questions that were asked.

It's just his responses changed each time the questions were asked. […]. […] […]The conditions are that you keep the peace and be of good behaviour, you report to a probation officer as and when required; and you will comply absolutely with any order regarding access to the child […] made by the Court of Queen's Bench, Family Division. You understand these orders? MR. CHEN: Yes. [Transcript – pp. 31 and 35, Sentencing - April 16, 2012] [ 17 ] The trial judge also discusses Mr.

Chen’s capacity in English in the decision: Since English is not the first language of the accused, it might be suggested that perhaps he was confused by the wording of the order, or that he, for language reasons, did not understand his obligations. This is dispelled by the testimony of the accused himself who testified on cross examination that he has been engaged to provide translation services in the courts of New Brunswick in the past, and that he is

confident of his ability to speak, read, and understand English. He testified that he understands written English. [Trial decision – p. 4,para. 2, January 24, 2012] Thus, we cannot find any error of law on the part of the trial judge. We might add that, although Mr. Chen had an interpreter seatedbeside him throughout the hearing of the appeal, he did not appear to engage her services. There has been no breach of Mr. Chen’sCharter rights, and this ground of appeal must fail. V.

The judge’s assessment of the evidence [18] The remaining grounds of appeal simply challenge factual findings made by the judge as well asher evaluation of the evidence. As such, these are mostly questions of fact for which Mr. Chen requires leave. Furthermore, suchfindings are owed deference by this Court. In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, the Supreme Court instructs: The appellant submits that the Court of Appeal, in this regard and in other respects as well, departed impermissibly from the trial judge'sappreciation of the evidence. With respect, I agree.

But since I would in any event allow the appeal on other grounds, I find it sufficientfor present purposes simply to reaffirm the governing principles. Appellate courts may not interfere with the findings of fact made andthe factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable.The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overridingerror" is a resonant and compendious expression of this well-established norm: see Stein v.

The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802; Lensen v. Lensen, (SCC), [1987] 2 S.C.R. 672; Geffen v. Goodman Estate, (SCC), [1991] 2 S.C.R. 353; Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian[page11] ad litem of) v. Burnaby Hospital, (SCC), [1994] 1 S.C.R. 114; Schwartz v. Canada, (SCC),[1996] 1 S.C.R. 254; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. [para. 9] [19] It is apparent the judge did not believe Mr. Chen and his testimony left her with no reasonabledoubt. In R. v.

Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, the Supreme Court says: There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to theconclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinionwith the trial judge (Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (AttorneyGeneral), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that "it is only where the Court has considered all of theevidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ...overturn the trial court's verdict". With respect to the credibility of witnesses, the same standard applies. In Lavoie v. R., [2003] Q.J.

No.1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge's assessment of the credibility of witnesses "willnot be disturbed unless it can be demonstrated that he committed a palpable and overriding error" (citing Housen v. Nikolaisen, [2002] 2S.C.R. 235, 2002 SCC 33). [para. 10] [20] In R. v. Melvin, 2009 NBCA 38, [2009] N.B.J. No. 180 (QL), this Court states: […] the judge reviewed the evidence and made credibility findings that were his to make.

The Supreme Court and this Court have stated,time and again, that such findings cannot be set aside unless the result of a palpable and overriding error. No such error has been pointedout and none is evident on the record. With respect to the third ground of appeal, the trial judge stated he did not "believe [Mr. Melvin's]version as to what happened." […] [para. 3] A review of the record before the trial judge reveals these grounds have no merit. Leave is not granted with respect to those that raisequestions of fact.

VI. Appropriateness of sentence [21] Although Mr. Chen did not advance the appropriateness of the sentence as a ground of appeal, itbecame apparent during the hearing that Mr. Chen did not believe the sentence imposed was appropriate. Time and time again, this Courthas stated the review of a sentence on appeal mandates a deferential approach. In R. v. R.P., 2001 NBCA 115, 245 N.B.R. (2d) 179, theCourt states: At the outset, we must remember that this Court cannot interfere in a case such as this unless it can answer in the affirmative any of thefollowing questions:

(1) Did the sentence imposed at trial result from an error in law?

(2) Did the trial judge commit an error in principlein sentencing the accused?

(3) Is the sentence inordinately lenient [or harsh] having regard to the fundamental purpose of sentencing (s.718), the fundamental principle of sentencing (s. 718.1) and other relevant principles (s. 718.2), namely the need to account foraggravating or mitigating circumstances? See R. v. R.K.J. (1998), (NB CA), 207 N.B.R.(2d) 24 (C.A.), at paras. 11-13, R. v. H.S.L. (2000), 2000 NBCA 54 , 231 N.B.R.(2d) 358 (C.A.), at para. 28, and R. v. Parent, 2001 NBCA 60; [2001]N.B.J. No. 191 (C.A.), on line: QL (NBJ), at para. 8. [para. 11] [22] This position was recently reiterated in R. v.

Steeves, 2010 NBCA 57, 360 N.B.R. (2d) 88,where Drapeau C.J.N.B. says: In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J. No. 55 (QL),2008 SCC 62, at para. 16; R. v. L.M. [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R. v.

C.A.C.(2009), 349 N.R.B. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If the sentence at issueis the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. [para. 25] [23] The sentence in this case was not the product of an error in law or principle, and it certainlycannot be described as being unreasonable. VII. Motion for fresh evidence [24] At the hearing, Mr. Chen sought leave to adduce fresh evidence. We advised him of the test thathad to be met (R. v.

Palmer, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL)), and that the onus was upon him toconvince us the alleged fresh evidence should be accepted. Crown counsel made oral submissions urging the panel not admit the freshevidence. We received the material and advised we would reserve our decision as to whether or not the motion would be allowed. In ourview, the test was not met and, as such, the motion is dismissed. VIII. Disposition [25] For the above reasons, we dismiss the appeal against conviction and the application for leave toappeal the sentence. _____________________________ WALLACE S.

TURNBULL, J.A.

_____________________________ KATHLEEN A. QUIGG, J.A. _____________________________ BRADLEY V. GREEN, J.A.