R. v. Xiong, 2015 ONCJ 458

ONTARIO COURT OF JUSTICE CITATION: R. v. Xiong , 2015 ONCJ 458 DATE: 2015 08.20 COURT FILE No.: Regional Municipality of Durham 998 13 25086 BETWEEN: HER MAJESTY THE QUEEN — AND — Yongxi Xiong Before Justice J. De Filippis Heard on March 6, June 19, & September 2, 2014; February 27 & May 26, 2015 Reasons for Judgment released on August 20, 2015 [1] Ms. T. Jackson/Mr. F. Stephens [2] .......................................................... counsel for the Crown Ms D.

Pledge .................................................................................... counsel for the defendant De Filippis, J.: [ 1 ] The defendant is charged, in four counts, with threatening to kill the complainant, his wife and two children on March 18, 2013. The defendant claims that the reverse is true; the complainant threatened him and his family. I heard from four witnesses and received numerous email messages, letters and other exhibits, most of which were tendered by the Defence.

These reasons explain why I find the defendant guilty. [ 2 ] At all material times, the defendant was a graduate student at the University of Ontario Institute of Technology (UOIT) and the complainant, Mr. Zhaolin Wang, was one of his supervising professors. The head of the program was Dr. Naterer and the Dean was Dr. Liscano. The defendant began graduate studies at UOIT in 2010. The following year, the complainant became his supervisor. The defendant was required to complete a thesis and received $1,500 per month from the University for related activities.

This case is anchored in this academic environment. [ 3 ] The defendant was arrested on March 18, 2013, the day the offences are said to have occurred. He was found in possession of a recording device and a note written in Mandarin. [3] The English translation is: “You tortured me and made sure nothing good happened to me. You ruined my education degree and my future. Someday, I will take revenge on you for sure. I will kill you, including your wife and children”. It must be noted that although the possession of this document is admitted, the translation of part of it is disputed by the defendant.

The defendant claims that the Mandarin words for “education degree “could also be translated as “academic position”. The accredited interpreter at this trial advised the court that the literal translation is “academic position” and added that it “usually refers to pursuing a degree”. This is an important issue because the complainant and defendant each assert that the note accurately reflects the threat made by the one to the other. [ 4 ] The complainant is married with three children between the ages of three and thirteen. He began supervising the defendant’s graduate program in 2011 along with Dr. Naterer.

He testified that the defendant experienced health problems during the program and this affected his studies. He reported this fact to Dr. Naterer in December 2012. The complainant added that he had previously expressed this concern to the defendant and that the latter became “very hostile” and said, “Be careful of your future….if you don’t treat me well. I want to treat you good…I will make you and Dr. Naterer notorious”. When the complainant asked if this was a threat, the defendant replied, “Think about it”. The complainant conceded he did not tell Dr. Naterer about the threats to his family in December 2012.

He explained he did not want to engage “the legal process” and, instead, focussed on trying to resolve the situation. In any event, Dr. Naterer reduced the defendant’s graduate research assistant pay from $1500.00 per month to $500.00 per month. [4] [ 5 ] The complainant’s concern about the defendant’s performance was repeated at two weekly meetings between them and recorded in

notes he maintained as part of the supervision program. The complainant recorded that on these dates, January 25 and February 1, 2013, the defendant responded by shouting at him, calling him “a dictator” and “evil”. [5] [ 6 ] On January 29, 2013 Dr. Naterer issued a Graduate Student Progress Report to the defendant and noted that there were “difficulties with progress”. However, the defendant was granted an extension to May 2013 to complete his thesis and his research grant was reinstated to the previous level. Subsequently, the defendant wrote a long letter to the complainant, thanking him and Dr.

Naterer for restoring the funding, responding to the concerns about his work, and suggesting ways that the complainant could be more helpful to him. [6] [ 7 ] According to the complainant, on the afternoon of March 15, the defendant came to his office and said that “I must be careful with my family and my kids if I don’t let him pass his thesis”. The defendant had surreptitiously recorded the meeting on March 15. [7] The complainant confirmed that the transcript of that recording is accurate and that it does not reveal any threats.

The complainant testified that the recording was terminated before the meeting ended and that the threat was uttered immediately thereafter. That evening, the complainant reported this event to the Associate Dean and asked to be allowed to withdraw as co-supervisor of the defendant’s graduate program. [ 8 ] The Associate Dean agrred to the complainant’s request and referred the matter to UOIT Security. The latter commenced the process to ban the defendant from the university and removal from the program. When the complainant learned about this action, he requested reconsideration.

He explained that he was concerned about the defendant’s mental state and feared a ban would make matters worse. He asked that the measures be limited to keeping the defendant away from him. UOIT Security agreed to this. [8] [ 9 ] On March 18, the complainant was interviewed by UOIT Security and he reported the events that occurred three days earlier. Later that day, at 1 PM, the defendant came to his office and, according to the complainant, “clasped his teeth and spoke with determination, he said, ‘I would absolutely revenge on your whole family and I would kill your kids if you don’t let me pass my theses.

I mean it, I mean it’ and then he left”. The complainant sent an email to the head of security to report what had just occurred. He said he felt “strongly and violently threatened”. [ 10 ] The complainant denied that he ever requested money from the defendant. He admitted being upset that the defendant had, in January 2013, complained about him to his superiors at the university.

He also rejected the suggestion that he had threatened the defendant in words similar to the note found in the defendant’s possession; when this was put to him, he protested that, “I am the victim here”. [ 11 ] Ms Kun Zhao runs a small business and has known the complainant and his family for several years. On March 17, 2013 she received a telephone call from the defendant. The latter surreptitiously recorded this conversation. The defendant reminded her that they had once met and explained that the complainant was his graduate supervisor. The defendant and asked for the complainant’s home address.

Ms Zhao declined to give the information requested. She testified that the following day, the complainant’s wife told her about the defendant’s arrest. On learning this, Ms Zhao reported that the defendant had contacted her to obtain the complainant’s address. [ 12 ] The defendant is 33 years old and married with two children. He testified that he is unemployed and added, “because of this case, it exhausts me”. He is supported by his wife. [ 13 ] According to the defendant, his “very good” relationship with the complainant soured after November 30, 2012.

On that day, the latter mentioned the defendant’s expected graduate degree said, “How are you going to thank me?”. The complainant explained that in their native China, students at universities paid their professors the equivalent of $2,500.00 Canadian. The defendant testified that he replied he would show his gratitude in other ways, but would not pay money. [ 14 ] The defendant testified that in the preceding year he had experienced diabetes and high blood pressure. This caused him to take a short break from his studies in the summer of 2011 and to work at a slower pace thereafter.

On December 4, 2012 the defendant wrote to Dr. Naterer to request an extension of time to complete his thesis with a continuation in funding. According to the defendant, the complainant promised to support this request. Dr. Naterer responded two days later and said that he had discussed the matter with the complainant and decided to grant the extension of time but reduce the monthly funding to $500.00. The defendant testified that he confronted the complainant about his “lie” and called him “two-faced”.

He said the complainant was “shamed and speechless”. [ 15 ] On December 20, 2012 the defendant wrote to the Dean to report the complainant’s “ugly deeds”. These are described as requesting a “bribe of 15000 RMB (over $2500.00 Canadian dollars)”, saying he would never allow the defendant to pass his program, discrimination against another student based on race, engaging in sharp practices with respect to one of his peers, and spending hours during the work day reading Buddhist Scripture, rather than performing his duties. [9] Three days later, the defendant wrote a long letter to Dr.

Naterer to expose the complainant’s “double dealing”. He also repeated the “ugly deeds” previously noted but without reference to the allegation that the complainant had sought a bribe. [10] [ 16 ] The defendant testified that in January 2013, the complainant confronted him about the aforementioned email to Dr. Naterer. He said the complainant was angry and said, “How dare you, as a student, challenge me and accuse your professor. I cannot tolerate a student with such audacity. I’m going to kill you”.

Subsequently, on January 13, the defendant sent an email to the Dean and said this about the complainant: “I was threatened not pass my thesis (sic)…Right now, I am in the very dangerous situation. I felt extremely frustrated and despaired. I need your help and salvation”. The note does not contain the allegation that the complainant said he would kill the defendant. [11] [ 17 ] On January 19, the defendant again wrote to the Dean to ask that the complainant be removed as his supervisor. He said the complainant’s actions have “rapidly worsened and harmed my health, not only my physical body, but my soul”.

He explained that the complainant had “discredited and defamed me” among the other students and “resorted to all sorts of tricks to lure me into his traps”. He added that the complainant “started to secretly record our dialogues…in order to frame me up later”. The letter concludes with a plea for “urgent help” – to reconsider the reduction in his monthly funding. The defendant explained that this family finds it difficult to get by on $500.00 per month. In the weeks, UOIT reinstated the funding at $1500.00.

[18] According to the defendant, at about this time (“mid-January”), the complainant came into his office, “flush with anger andin a low voice said, ‘your complaint may affect my tenure and I will revenge you and get rid of your children”. The defendant testifiedthat he wrote, in Chinese, the precise words uttered by the complainant, on a note that he kept in his wallet. He added that the note “fellout of wallet” (sic) when the police arrested him in March 2013.

The English translation, including the disputed phrase, is set out above. [19] The defendant testified that by March 15, 2013, he had completed certain experiments related to his thesis and approached thecomplainant to seek his assistance in continuing at the University of Toronto. He told the complainant he had acted unfairly andappealed to the complainant’s Buddhist beliefs. It is clear from this conversation that the complainant wanted nothing to do with thedefendant; he told him to see his supervisor.

The defendant surreptitiously recorded this conversation.[12] [20] On March 18, the defendant sent an email to the Dean to seek his assistance in going to the University of Toronto to performthe other needed experiments and complete his thesis.[13] He testified that, after lunch, he went to the complainant’s office to inquire ifhe could go to the University of Toronto that week. The complainant told him it was not his responsibility to make such arrangements.The defendant said he left and did not see the complainant again.

At 2:30, the defendant was approached by UOIT Security and told hewas no longer allowed in the laboratory. He testified he was “shocked” by this. He was escorted to another area and arrested by thepolice. The note, already described, was seized from his wallet. [21] The defendant denied threatening the complainant or his family on March 18. He asserted that the complainant fabricated theallegations to punish him for having complained about him and “compromised his academic future”. He acknowledged contacting MsZhao two days earlier and said it was a friendly chat.

He testified he did not need Ms Zhao to learn the defendant’s address as this iseasily ascertainable online. [22] Defence counsel submits that the defendant’s denial of the charges should be accepted. He acknowledged that health issuescomplicated his graduate program but insisted that he and the complainant had a good relationship until the latter requested a bribe fromhim. The situation became worse when the defendant reported to the Dean and others about the complainant’s misconduct as aprofessor.

This, it is said, explains the defendant’s email messages to his superiors about the deteriorating relationship with thecomplainant. This, it is said, is why the complainant threatened the defendant. [23] The Defence submits I should be concerned by the fact that the complainant did not report the defendant’s threats inDecember 2012 and in January and February 2013. This, it is said, shows the threats were not uttered by the defendant and this is alsoproven by the fact that the threats allegedly made in the meeting on March 15 are not captured in the surreptitious recording.

In thealternative, it is suggested that the complainant misconstrued the defendant’s comments to be a threat. The Defence position is that thecomplainant became worried about the defendant’s ongoing complaints about him and fabricated these allegations and/or hemisconstrued what the defendant said, as he may have done on March 15. [24] The defendant is presumed to be innocent of the charges. The burden on the Crown to prove guilt beyond a reasonable doubtmeans, in the face of Defence evidence, that the prosecution fails (

i) where the testimony is believed, (ii) where the testimony is notbelieved, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, butthe remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397 (S.C.C.). In this regard, the Defence evidence is not assessed in isolation but considered within the context ofthe entire case: F v R.D. [2004] O.J. 2086 (O.C.A). [25] I do not accept the Defence position because I reject the defendant’s testimony about these matters.

The defendant’s conductat the material times is inconsistent with his version of events. For example, in December 2012, having initially asserted that thecomplainant sought a bribe, the defendant wrote a long letter to Dr. Naterer to expose the complainant’s “double dealing” and “uglydeeds” but failed to include this most serious allegation of academic misbehaviour.

Similarly, in January, the defendant sent an email toreport the complainant had threatened to obstruct him in successfully completing his thesis but did not mention, as he testified at trial,that days earlier the complainant had said, “I’m going to kill you”. Later that same month, on January 19, in a letter to the Dean, thedefendant reported that the complainant was being unfair to him and requested that his funding be restored, but again, he failed tomention the attempt to extort a bribe. On the other hand, the defendant did express a concern that the complainant had secretly recordedtheir meetings.

There is no other evidence to support this claim. Having regard to the fact that the defendant admitted doing so, this isbizarre. [26] It makes no sense that the defendant would seek the complainant’s assistance on March 15 and 18, when latter was supposedto have earlier threatened the defendant and his family. In any event, the defendant testified that he visited the complainant on March 18to solicit his assistance in going to the University of Toronto. That may be so, but I do not believe that he left without further incidentwhen he was refused.

Only three days earlier, in a tense meeting, the complainant made it clear he would not help the defendant in this regard. I find that the defendant repeated the request on the 18th and uttered the threats when he was again rebuffed. This likely explainswhy he did not use the recorder in his possession to surreptitiously record this meeting. My conclusion that the defendant threatened thecomplainant on this date is buttressed by the fact that he had just sent an email to the Dean requesting help with respect to the Universityof Toronto.

In other words, there was no need return to the complainant about this matter. I find that this was not the defendant’s onlypurpose in so doing. [27] Another reason I reject the defendant’s evidence is that he was not candid about the telephone call to Ms Zhao. This was not,as claimed, a friendly chat. The transcript reveals the defendant pressed her for the address. He and Ms Zhao were merelyacquaintances. Moreover, the timing of the call is significant. I find it to be sinister. [28] The matter of the note found on the defendant is perplexing.

Defence Counsel asserts that it cannot be believed that a personwho threatens another would write it down and keep it his wallet. She argues that it is more reasonable to find that the defendantrecorded the threat to him by the complainant. Crown counsel submits that it may be that the defendant returned to the complainant’soffice on March 18 with the intention of leaving the note there and, having discovered the complainant was still present, verballythreatened him. I cannot come to that conclusion. However, I am confident the note does not record a threat made by the complainant.

[ 29 ] As already noted, the note was originally translated as “you ruined my education degree…”. The court interpreter advised that “education degree “could also be translated as “academic position” and that what is commonly meant by this is “pursuing a degree”. The significance of the disputed phrase is that “an academic position” better describes the complainant’s role, whereas “education degree” or “pursuing a degree” fits that of the defendant.

I find that the ordinary and normal meaning of the phrase refers to the defendant; the note reveals that it is his future that has been ruined and it is he who is making the threat. I do not believe this note reflects a conversation that occurred between the parties some two months earlier. It is even more remarkable that he would not have disclosed it to the Dean in one of his critical reports during this period. [ 30 ] I accept the evidence of the complainant. It has not been undermined. Unlike that of the defendant, it is consistent with his actions.

The complainant testified that the defendant’s health issues compromised his studies such that the thesis completion date had to be extended. He added that the defendant became hostile, referred to his family, and warned him to be careful. This hostility continued into the New Year and caused the complainant to ask to be relieved of his role as supervisor After the March 15 incident, the complainant immediately reported the threat to UOIT Security.

This was followed, three days later, by the events that form the subject matter of the charges. [ 31 ] The complainant conceded that on several occasions the defendant warned him to be careful about his family and/or his children. I am not troubled by his failure to report these because I accept that he hoped to diffuse the situation. Indeed, as late as March 15, the complainant resisted attempts to ban the defendant from the university out of concern that this would inflame the situation.

What the complainant did do is consistent with this cautious approach; he arranged to be relieved of his duties as supervisor and declined the defendant’s repeated request to assist him in completing the thesis. Similarly, I am not troubled by the fact that the March 15 threats are not captured on the audio recording. The defendant secretly recorded several conversations and was found with a recording device on his arrest.

I find he was prepared to turn it on and off to suit his purpose. [ 32 ] In the months leading up to March 2013, the defendant became increasingly anxious over his studies and blamed the complainant for his troubles. His email messages and letters reveal this angst. His obsession to overcome the perceived unfairness caused him to persist in seeking the complainant’s assistance notwithstanding the latter was no longer his supervisor. This is immediate context for the events on March 15 and 18.

When the complainant flatly refused to help him with the final part of the thesis - arranging for experiments at the University of Toronto - the defendant held him responsible for “ruining his future” and uttered the threats. [ 33 ] The defendant asserted that the complainant once said: “How dare you, as a student, challenge me and accuse your professor. I cannot tolerate a student with such audacity. I’m going to kill you”. On the evidence before me, this language, reflects the defendant’s state of mind, not that of the complainant. [ 34 ] The Crown has proven its case. The defendant is guilty as charged.

Released: August 20, 2015 Signed: “Justice J. De Filippis”