THE CHINESE WARREN BUFFET’ CONSPIRATION THEORY AGAINST OSC AND THE ONTARIO COURTS AND COURT JUSTICE

C56745 COURT OF APPEAL FOR ONTARIO B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - WEIZHEN TANG Applicant THE CHINESE WARREN BUFFET’ CONSPIRATION THEORY AGAINST OSC AND THE ONTARIO COURTS AND COURT JUSTICE A. BACKGROUND (1) Trial proceedings 1. The Applicant was wrongfully convicted following a trial by judge and jury of fraud over $5,000 on October 30, 2012 following a 6 week trial. It was alleged that the Applicant defrauded various investors through an investment fund that he managed called “Overseas Chinese Fund”. He invested $1,6 million his own money into the fund on January 29, 2009 and after and lost more that $2 million including his house because of OSC and the court and raised over $59 million from January of 2006 until February of 2009. Of the $59 million raised, $45 million was returned to investors, two million dollars left in the investment account which was frozen and token by lawyers maliciously. About 10 million dollars lost in the market in the beginning and 1.7 million dollars left in the USA investment account and taken by US lawyers under the cover of SEC. Only $2.84 million was used for administration and other expenses going to companies the Applicant have controlled although there was no evidence that the Applicant personally benefited from the fraud. 2. The circumstances of the offences were originally investigated by the Ontario Securities Commission. This included the OSC seizing approximately $440,000 under s.126 of the Securities Act (Ont.). The Applicant claimed an interest in $200,000 of that money which was his TD bank line of credit against his house. By Order of Justice Peppal the money seized was to be disbursed, pro rata, to the investors who had an interest in the money at the conclusion of the criminal proceeding (subject to further order of the Court), it was done, the Justice Peppal was misleading the public, she made the law firm Gowling stole all of the money. 3. The Applicant was self-represented at his trial having been unsuccessful in obtaining legal aid and in seeking a stay of the proceedings until the Attorney General of Ontario agreed to fund the appointment of counsel by way of a Rowbotham order. Notwithstanding this, the Court appointed amicus curiae for the trial. The Applicant testified at his trial. He essentially admitted the actus reus of many of the allegations but denied that he had any criminal intent. He also put his character in issue, which permitted the Crown to put into evidence bad character evidence in relation to the Applicant. 4. The Applicant was sentenced on February 1, 2013 to imprisonment for 6 years. Additionally, the Applicant was fined $2,849,459.50 in lieu of forfeiture with 5 years’ imprisonment consecutive in default. (2) Appellate proceedings 5. The Applicant filed an inmate notice of appeal against his conviction and sentence received by the court on March 1, 2013. He applied for legal aid to fund his appeal but was refused. He has exhausted all appeals from that decision. 6. On June 12, 2013 the Applicant brought an application before Mr. Justice MacPherson for bail pending appeal. He made submissions without wanting the assistance of duty counsel. Ultimately, Justice MacPherson concluded that, on the basis of the material before the Court at that time, the Applicant had failed to satisfy the Court that his appeal had any merit. 7. On February 21, 2014, Mr. Justice Rosenberg (having been designated by the Chief Justice) heard the applicant’s application for a direction to review Justice MacPherson’s order of June 12, 2013. Justice Rosenberg considered the Applicant’s application and found that there was no basis to review Justice Macpherson’s finding that the appeal had no merit. He noted at paragraph 2 of his endorsement that “I have reviewed the materials especially those related to the Rowbotham motion and the charge to the jury. I can see no basis for coming to a different conclusion that Nordheimer J. for refusing the Rowbotham motion as set out in his ruling of September 29, 2011. He may have underestimated the sentence the appellant was likely to receive, but in all other respects his reasons justify the order made. The Applicant also sought the appointment of counsel pursuant to s.684(1) of the Criminal Code. The Court rejected the application finding that there was insufficient merit to warrant appointing counsel and that, additionally, based upon the findings by Nordheimer J. the Applicant was “not without means to fund his legal proceedings.” 8. On April 9, 2014, the Applicant’s appeal was scheduled for hearing on the inmate appeal list in Kingston, Ontario. The Applicant appeared. Duty Counsel also appeared. Duty counsel identified two potential areas of appeal for the Applicant in relation to the expert forensic accounting evidence adduced at trial and a sentence appeal. The Applicant submitted that there were additional materials relevant to the Rowbotham application that should also be produced so that he could revisit the s.684 application and because it was relevant to an appeal of the Rowbotham application. The Court ordered the Crown to produce further materials and asked duty counsel to review the material and, also, to assist the Applicant in revisiting the s.684 application if the circumstances warranted. With that direction, duty counsel offers the following analysis. B. SECTION 684 APPLICATION (1) Relevant legal principles 9. Section 684 of the Criminal Code provides the Court with jurisdiction to appoint counsel. The provision provides as follows: 684. (1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. Marginal note: Counsel fees and disbursements (2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal. Marginal note: Taxation of fees and disbursements (3) Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements. R.S., 1985, c. C-46, s. 684; R.S., 1985, c. 34 (3rd Supp.), s. 9. 10. The two statutory criteria that must be met before the Court will appoint counsel are as follows: 1. That the Applicant does not have sufficient means to retain counsel; and 2. It is the interests of justice that the Applicant have counsel assist him or her with the appeal. 11. The “interests of justice” criterion was conveniently summarized by Justice Tulloch in R. v. Johnson [2013] O.J. No. 4851 (C.A.) as follows: 14 The phrase "interests of justice" used in s. 684(1) contemplates a judicial discretion exercisable on a case-by-case basis: R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 16. 15 An accused who appeals against conviction for an indictable offence under s. 675 must be afforded a meaningful opportunity to establish the merits of the grounds of appeal he or she advances. The court to which the appeal is taken must equally be able to fully and properly exercise its broad review jurisdiction at the conclusion of the appeal: Bernardo, at para. 20; R. v. Abbey, 2013 ONCA 206, 115 O.R. (3d) 13, at para. 30. 16 The test on a s. 684 application is predicated on the merits of the appeal or, in other words, whether the appeal is "arguable". In Bernardo, Doherty J.A. articulated the principle as follows, at para. 22: o In deciding whether counsel should be appointed, it is appropriate to begin with an inquiry into the merits of the appeal. Appeals which are void of merit will not be helped by the appointment of counsel. The merits inquiry should not, however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal. 17 Once an appellant advances arguable grounds, a second inquiry to determine whether the appellant can effectively advance the grounds of appeal without the assistance of counsel becomes necessary. This second stage requires an examination of the complexities of the arguments to be advanced and the appellant's ability to make legal arguments in support of the grounds of appeal to be advanced: Abbey, at para. 33. 12. In assessing whether or not a s.684(1) appointment is appropriate, the existence of a pro bono duty counsel program should not be taken into account. In a recent endorsement Juriansz J.A. summarized evidence adduced on a s.684 motion concerning this issue in the following terms (R. v. Adamson [2014] O.J. No. 3674 (C.A.)): 3 Counsel for the applicant advanced a thoughtful argument that the existence of the Inmate Duty Counsel Program should not be a relevant consideration in determining a s. 684 application. He provided the court with the Legal Aid Bylaw relating to the "Ontario Inmate Appeal Duty Counsel Program", and a number of affidavits and letters of experienced defence counsel who regularly act as duty counsel in the Program. Relying on this material he submitted that it is not the intention of the Duty Counsel Program to supplant the Legal Aid Ontario Certificate Program, and that it cannot be assumed that duty counsel will take on each and every matter. He said the Duty Counsel Program relies on the sympathy, empathy and desire for accessible justice of defence counsel who essentially work on a volunteer basis. If s. 684 applicants were denied funding solely because of the existence of the Duty Counsel Program, some duty counsel might rethink their participation in the Program. The Program would not be sustainable in the longer term. Ultimately, in that case, Crown counsel did not place any reliance on the existence of the duty counsel program to answer a s.684 application and, it is submitted, it would be inappropriate for the Court to do so here. (2) Means to retain counsel 13. In submissions made on the original Rowbotham application Crown counsel made the following concessions: • The Applicant was on social assistance; • His expenses were greater than his social assistance; • The Applicant had significant debts; and • His bills were being paid based on what appeared to be contributions from others; At the time, the Applicant was in custody. Since his conviction, he has been incarcerated serving his 6 year sentence. He is also subject to a fine order of over $2.8M with a 5 year consecutive sentence in default. He has had no source of income since his incarceration. He is obviously not employable. 14. When Justice Rosenberg considered the question of whether the Applicant had sufficient means to appoint counsel, he noted that based on the findings of Nordheimer J. (on the original Rowbotham application), the Applicant was not without means to fund counsel. However, having first concluded that the Applicant had not met the “merits” test to justify the appointment of counsel, this finding was arguably obiter. Additionally, in any event, to the extent that there is an arguable basis to challenge Justice Nordheimer’s dismissal of the Rowbotham application with the benefit of additional materials and/or arguments that Justice Rosenberg did not have at the time of the original s.684 application, it would be circular to rely on that ruling as a basis for concluding that the Applicant has means to retain counsel. 15. Additionally, whatever the Applicant’s financial circumstances at the time of Justice Nordheimer’s order, he is in no position to fund counsel. In fact, to the extent that the Applicant has any money available to him to fund counsel, it would be presumptively proceeds of crime in light of his conviction and the fine in lieu of forfeiture that was made. The “other means” to fund counsel must be taken to mean the ability to fund counsel lawfully. No ethical counsel could accept payment of proceeds of crime for a retainer (other than by way of Court order). As Justice MacAdam suggested in R. v. Wilson [2002] N.S.J. No. 221: 51 In the present application, and although satisfied Mr. Wilson lacks credibility and has shown a willingness to deceive and mislead when deemed to be in his interests, there is no evidence of any unexplained assets to cause me the concerns as were raised by Justice Cromwell in R. v. Assoun, supra. Although there is the probability other assets may exist, there is no evidence as to what they may be or their value. 52 Mr. Wilson has a long history of admitted criminal activity and was located while serving time, under an alias, for drug trafficking. Such a person is unlikely to be found as a credible witness in respect to whether they have disclosed all their assets. Nothing in the reasons of Justice Cromwell suggests the issue is credibility. Rather, as he stated, the issue was whether he was satisfied the applicant "lacked the means to retain counsel." 53 If a finding of a "lack of credibility" determined the issue, then persons with histories of convicted or admitted criminal activity would be unlikely to be successful in applications for either state funded legal counsel under s. 684 or release of restrained assets to retain legal counsel under s. 464.34. Parliament, in providing for the release of unrestrained assets, clearly recognized the essential "right to counsel" in order to ensure an accused person receives a "fair trial". Although lacking credibility, I am nevertheless satisfied on the evidence tendered on this application, Mr. Wilson does not have "...other assets or means available..." to meet his legal expenses. Given his work history prior to incarceration in Grenada appears to have been in illegal activities, primarily in the various aspects of the drug trade, it is clear his assets, or, at least, substantially all of his assets "may be tainted as proceeds of crime." As such, and in view of the preclusion of counsel accepting as retainers "...money or property knowing or being wilfully blind to the fact that it is the proceeds of crime...", he does not have assets "available to fund his defence." [Emphasis added]. It is respectfully submitted that, if the Applicant otherwise satisfies the court that his appeal has merit (including appealing the Rowbotham decision) and that the Applicant requires the benefit of counsel to be able to effectively advance his appeal, the means test has been satisfied. (2) Merits of the proposed appeal based on the supplemental record or supplemental arguments not before Rosenberg J.A. 16. It is respectfully submitted that the Applicant’s appeal against conviction and sentence is not frivolous. Although the appeal will be a difficult one for the Applicant, the following grounds of appeal have some merit1: (a) Nordheimer J. erred in refusing to appoint counsel for the Applicant pursuant to his R. v. Rowbotham application; (b) The evidence of the Crown forensic accounting “expert” should not have been admitted as he was an investigator as opposed to an “independent”; (c) The trial judge erred in finding that this was an appropriate case for a fine in lieu of forfeiture given the purpose of such an Order (ie. to deprive fraudsters of their unlawful personal gain); 1 In going through this analysis, it should be noted that the grounds of appeal are not as fully developed as they might otherwise be on the appeal proper. In order to advance these grounds, counsel would need to more fully develop them. (a) The refusal to appoint counsel pursuant to the Rowbotham application 17. The Applicant was self-represented on the Rowbotham hearing. Originally the Applicant brought an application seeking to obtain access to the funds that were seized by the Ontario Securities Commission pursuant to s.126 of the Securities Act on the basis that he should be able to access those funds for the purpose of preparing his defence. In particular, he claimed that he had a $200,000 claim in relation to the money that was subject to the seizure. Ultimately, very experienced counsel for the Ontario Securities Commission (Mr. Hutchison) appeared to oppose the Applicant’s request. The proceeding transformed into a Rowbotham application on the basis that whether the Applicant wanted to access those funds or arrange for state funded counsel, he would need to satisfy the court that he was without means to fund counsel. 18. It was agreed that the Rowbotham application would proceed with the Applicant being cross-examined, outside of Court, at an official examiner’s office. Mr. Hutchison was given leave to participate in the cross-examination in addition to Crown counsel (Compendium of transcripts, Tab 2, p.73) although it is unclear if he did so participate. Ultimately, when the matter returned to Court, Crown counsel made submissions opposing the application primarily on the basis that the Applicant did not lack the means to fund counsel. However, the Crown also submitted that the Applicant did not need counsel as he could understand the issues and evidence given his education, training and intimate knowledge of the “scheme”. 19. Justice Nordheimer concluded that the Applicant’s evidence with respect to his means to retain counsel was inconsistent and unsatisfactory. He ultimately concluded he agreed with Legal Aid’s assessment that the Applicant was not forthcoming and transparent about possible sources of income. It appears that it was ultimately his lack of candour regarding possible sources of income (para 11 of the judgment) that led Justice Nordheimer to conclude that the Applicant had failed to satisfy the Court that it was appropriate to appoint counsel. 20. There is an arguable issue as to whether Justice Nordheimer erred in his assessment of the Rowbotham issue. Any of the unexplained deposits or sources of income that appeared in various banking records would have been alleged proceeds of crime. The Applicant’s only source of income prior to his arrest was from the investment fund, which the Crown alleged was the vehicle by which the Applicant defrauded investors of $2.8M dollars. Even if there were “large deposits” that were unexplained, the Applicant could not de facto use that money to fund counsel (or more precisely counsel could not accept it) [Nordheimer J., Ruling, Tab 4, Compendium of transcripts, p.2, paras 4, 7 and 8]. At paragraph 11 of the ruling, Justice Nordheimer suggested as follows: [11] There is a limit to the government’s resources to fund legal representation. Those funds ought not to be directed towards persons who are not completely forthcoming regarding the resources that they may independently have from which to fund counsel. A result where public funds are made available to individuals who in fact have their own resources to use for counsel undercuts the very rationale for ordering state funded representation. Although the sentiment, in principle, makes sense, it is very much context specific. Where the Crown, as here, alleged that the Applicant’s only source of his income to fund his lifestyle was the unlawful proceeds of a Ponzi scheme, those funds were not legally available to fund counsel. 21. Justice Nordheimer also concluded that the Applicant was able to adequately conduct his defence without the aid of counsel. However, that conclusion appears, at least facially, to be inconsistent with the subsequent order appointing amicus curiae for the trial and with the conduct of the trial (it appears that amicus conducted much of the examination during the trial). Various decisions made by the Applicant who was very much unfamiliar with the criminal trial process similarly undermine the suggestion that he was able to adequately represent himself. Without the benefit of counsel, the Applicant appears to have put his character in issue during the course of the trial opening the door for the Crown to introduce bad character evidence (see Charge to the jury……). Similarly, without the benefit of counsel, the Applicant appears to have attempted to defend the case based upon a conspiracy theory. Finally, in assessing this issue, the Court can also consider the submissions made by the Applicant throughout the Rowbotham hearing as contained in the Compendium to assess his grasp of legal issues. 22. In considering the merits of this ground, the fact that the Court appointed amicus as opposed to counsel of choice is not necessarily an answer to the claim that the Applicant was denied a fair trial. As Justice Laskin recently noted in R. v. Al-Enzi [2014] O.J. No. 3608 (C.A.) at para 82 and following: 82 Even with an expanded mandate, however, amicus was not an adequate substitute for defence counsel. Al-Enzi needed a person fully familiar with his case, a person in whom he had full trust and confidence. The solicitor/client relationship is built on intangible characteristics, not transferable to a person appointed by the court - certainly not a person with whom the client has had no relationship: see R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.); and R. v. Rafferty, 2013 ONCA 741, [2013] O.J. No. 5550. Both the actual fairness and perceived fairness of criminal proceedings against an accused partly depend on this relationship. Courts zealously guard one's right to be represented by a lawyer at a criminal trial. Only in rare cases do courts limit this right. In my view, this was not one of those rare cases. … 84 The Crown makes two submissions in support of its contention that the refusal of a severance and the appointment of amicus did not cause an injustice: Al-Enzi's right to a fair trial was not prejudiced because Powell performed admirably once he was appointed; and this court has upheld first degree murder convictions at least twice in cases in which the accused was unrepresented for part of the trial and had only amicus to assist him: see R. v. Amos, 2012 ONCA 334, 292 O.A.C. 298, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 160; and R. v. Phung, 2012 ONCA 720, [2012] O.J. No. 5058, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 97. I do not accept either of the Crown's submissions. 85 It seems to me that an inquiry into Powell's performance and whether it did or did not prejudice the fairness of Al-Enzi's trial is neither a desirable nor a relevant inquiry: see McCallen, at pp. 78-80. This is a case in which the accused was deprived of counsel, not a case in which he claimed to be ineffectively represented by counsel. In a claim of ineffective representation the issue of prejudice is central to an appeal court's determination of whether a miscarriage of justice has occurred. See R. v. Joanisse, [1995] 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; and R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29. When, however, an accused is deprived of the right to counsel altogether, that deprivation almost always gives rise to the appearance of unfairness. No demonstration of actual prejudice is therefore needed. 86 In McCallen, at pp. 78-80, O'Connor J.A. rejected the Crown's argument that an accused had to show actual prejudice from the denial of a right to counsel of choice. The denial itself created a perception of unfairness and resulted in a miscarriage of justice. That perception is even stronger here, when Al-Enzi was deprived not just of counsel of his choice, but of counsel altogether. He was left unrepresented, facing two well-represented adversaries -- the Crown and Kayem -- who were lined up against him. Forcing him to proceed without a lawyer was unfair and produced a miscarriage of justice. 23. If one needs a palpable example, from this case, as to how the Applicant’s counsel of choice might have conducted himself as opposed to how the “friend of the court” did so, reference can be made to the comments made by amicus at the end of the trial judge’s charge to the jury where he went out of his way to make the following comment (Charge to the jury, p.215, ll.15 to 30): Your Honour – first of all, I should say, Your Honour – and I have been advised by many of appellant [sic] counsel not to actually compliment judges on the fairness of the Charge. But regardless, I think at the end of the day, Your Honour’s charge – I think my friend would agree with this – is abundantly fair in terms of its presentation of the evidence withrespect. Had the same lawyer been the Applicant’s counsel of choice, perhaps he would heeded appellate counsel’s advice. 24. The Applicant has already tried to present the issue on the merits of this ground of appeal to Rosenberg J.A. Although the Court did not have the benefit of the entire record that is before this Court, the submissions filed by the Applicant and the oral argument he advanced do not suggest that he will be able to adequately present this issue on the appeal proper. (b) The evidence of the Crown forensic accounting “expert” should not have been admitted as he was an investigator as opposed to an “independent” 25. The Crown called as an expert in the area of “forensic accounting” Mr. Deverteuil (Transcript, p.331ff). It does not appear that his evidence was subject to a voir dire in the absence of the jury. Although he had never testified before as an expert witness in a court proceeding (other than at the Applicant’s preliminary inquiry), he was qualified without objection from the amicus curiae after some brief questions about his background and experience in the presence of the jury. Mr. Deverteuil was employed by the Ontario Securities Commission (p.335). He came to be involved in the case because he was one of the “investigators” assigned to investigate the activities of the Applicant. He not only conducted an analysis of the money but he also interviewed witnesses. The examination of the witness by the Crown involved walking him through his investigative steps and then walking him the contents of his “expert report” which was then marked as exhibit “84”. His curriculum vitae was also marked as an exhibit. 26. Although it appears that largely the evidence involved a cash flow analysis (ie. tracing funds through various accounts), he was also asked to opine on what types of documentation and/or things he would have expected to find if the fund was legitimate (pp.519 to 523). Also clear that the evidence formed a significant part of the trial judge’s review of the evidence during his charge to the jury. There is an argument to be made that the OSC investigator who was directly involved with the investigation of allegations that led to the Applicant being charged, should not have been qualified to give expert evidence because he lacked the necessary degree of independence to testify as an “expert.” 27. Expert witnesses can have a significant effect on a jury’s understanding of the evidence and the manner in which they assess the case. Although opposing parties retain experts in the context of an adversarial process, the need for an expert to be objective and independent is important to fair trial interests (Ikarian Reefer [1993] 2 Lloyd’s Rep 68). So important is this concept, that the Rules of Civil Procedure were amended on January 1, 2010 to require experts to sign an acknowledgement that they understand their duty to be independent and objective. Rule 4.1.01 provides as follows: 4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. Duty Prevails (2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. 28. In Carmen Alfano Family Trust v. Piersanti [2012] O.J. No. 2042 (C.A.), O’Connor ACJO considered the issue of independence and objectivity of experts in the following terms at para 108 and following: 108 When courts have discussed the need for the independence of expert witnesses, they often have said that experts should not become advocates for the party or the positions of the party by whom they have been retained. It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more. The critical distinction is that the expert opinion should always be the result of the expert's independent analysis and conclusion. While the opinion may support the client's position, it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client. An expert's report or evidence should not be a platform from which to argue the client's case. As the trial judge in this case pointed out, "the fundamental principle in cases involving qualifications of experts is that the expert, although retained by the clients, assists the court." 109 The report of the Goudge Inquiry, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General: 2008), at p. 503, noted the importance of expert witness independence, quoting the principles described by the Court of Appeal of England and Wales in R. v. Harris and others, [2005] EWCA Crim 1980, at para. 271: (1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. (2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate. ... 110 In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert's evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency. 111 That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 91. If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence. 112 In considering the issue of whether to admit expert evidence in the face of concerns about independence, a trial judge may conduct a voir dire and have regard to any relevant matters that bear on the expert's independence. These may include the expert's report, the nature of the expert's retainer, as well as materials and communications that form part of the process by which the expert formed the opinions that will be the basis of the proposed testimony: see R. v. INCO Ltd. (2006), 80 O.R. (3d) 594, at p. 607 (S.C.).6 113 An appellate court will accord deference to a trial judge's decision to exclude evidence of an expert on the basis that the proposed evidence lacks independence. On reviewing such a decision, an appellate court will look to whether the trial judge applied the proper legal principles and whether the trial judge's conclusion was supported by the evidence. Absent such an error, an appellate court will not interfere. See also: Beazley v. Suzuki Motor Corporation 2010 BCSC 480 (S.C.) at paras 20-22 Abbott and Haliburton Company v. WBLI Chartered Accountants 2013 NSCA 66 pars 24-33 29. Although this potential ground of appeal will need to be more fully explored and developed if the Applicant has counsel’s assistance, it is at least arguable that qualifying an investigator as an “expert witness” was an error in the circumstances of this case. The Applicant obviously challenged the reliability of the witness’ analysis and the failure of the witness to examine all of the necessary banking information to substantiate any opinion about the legitimacy of the investment fund. Although the trial judge noted that it was for the jury to assess the reliability and weight to be accorded the witness’ evidence and to take those matters into account in doing so (para 158), the proceeding paragraphs (paras 155 to 157) essentially suggested to the jury there was no real reason to be concerned about lack of independence. The propriety of allowing the Crown to dress up an investigator’s cash flow analysis as expert evidence with a sprinkling of opinion evidence makes for at least an arguable ground of appeal. 30. This potential ground of appeal is not one that could be effectively presented by the Applicant. It is a developing area of law and one over which even experienced jurists disagree upon. Additionally, neither the Applicant nor amicus sought to raise the issue at first instance. Either that’s because there was no issue to raise or the issue was one that was not easily raised. (c) The imposition of a fine in lieu of forfeiture 31. The Applicant was subject to a fine in lieu of forfeiture in the amount of approximately $2.8M. The trial judge sentenced the Applicant on February 1, 2013. Nine days earlier, this Court released a decision in R. v. Dwyer 2013 ONCA 34 (January 22, 2013) dealing with the issue of fine in lieu of forfeiture. The trial judge did not make reference to the Dwyer decision and it is unclear on the basis of the record whether it was brought to his attention. 32. In making the order under s.462.37, the trial judge concluded that because it appeared that pursuant to the statutory criteria in subsection (3), the money could not, on due diligence, be located (subsection (a)) and that it had been transferred to a third party (subjection (b)) – Reasons for Sentence, Appeal Book, Tab H, p.124). It does not appear, on the face of the reasons for sentence, that the trial judge considered the fact that approximately $400,000 of the money had in fact been located and was subject to the restraint order under s.126 of the Securities Act. It would be necessary to review the submissions of counsel on this issue more carefully to determine whether the issue was considered. This would have the effect of, at least, reducing the amount of the fine in lieu of forfeiture by $400,000. Although this issue could be advanced without the need for counsel, there is a further issue as to the appropriateness of any order in the circumstances. 33. In R. v. Dwyer, Rosenberg J.A. provided further assistance to trial judges as to the appropriateness of making an order under s.462.37 of the Criminal Code. In Dwyer there was no question that the amount of the fraud was $663,750. Of that, the victim was able to recover $426,049 leaving a balance of $207,700 outstanding. Recognizing the limited discretion to refuse to make the order, he also noted as follows: 24 In my view, an order for a fine in lieu of forfeiture can be made under s. 462.37(3) only where the offender has possession or control of the property in question or at least had possession of the property at some point. This conclusion flows from the use of the phrase "any property of an offender" in s. 462.37(3) and the definition of "property" in s. 2. Such an interpretation is consistent with the objectives of s. 462.37, which are to deprive offenders of the proceeds of crime and ensure that they do not benefit from those proceeds: see R. v. Appleby, 2009 NLCA 6, 242 C.C.C. (3d) 229, at paras. 26, 32-33. Those objectives would not be furthered by making orders in relation to property that was never in the possession of the offender, over which the offender never had control and from which the offender did not benefit: see also R. v. Mackenzie, [2002] O.J. No. 2512 (C.J.). 25 The decision to order a fine in lieu of forfeiture must be based on the evidence. As the court in Lavigne said, at para. 35: The fine, as that provision [s. 462.37(3)] says, is equal to the value of the property. Further, equivalency between the value of the property and the amount of the fine is inherent in the words "instead of". The fine takes the place of forfeiture. For the substitution to be genuine, the value must be equal. The court's discretion applies both to the decision whether or not to impose a fine and to the determination of the value of the property. It must be exercised in light of the evidence, and once this process has been completed, the court may not take the offender's ability to pay into consideration as a basis for deciding either to impose no fine or to reduce the amount of the fine. [Emphasis added.] 26 In her reasons, the trial judge stated: "I believe that the defendant still has much of that money"; and "She has blatantly avoided the issue of where the $207,700 is now and I conclude, as a result of that, that they are in her possession." The trial judge did not, however, identify any of the evidence upon which those findings were based and, in my view, that finding is not supported by the evidence. In argument before this court, Crown counsel could point to only one item in the record that showed the appellant had control of the missing funds. This is a direction to the lawyer, Mr. Atuobi-Danso, to pay out certain of the proceeds. It is a reasonable inference that this document was authored by the appellant and is some evidence of her control of the funds referred to in the direction. However, this document and the other supporting documents, such as cheques, only account for $436,756.38. There is no explanation for the remaining funds and thus no evidence that the appellant ever had control of the missing funds. Crown counsel at trial conceded in her submissions that it was difficult to trace the funds. For example, in respect of where the funds went, she told the judge that "all of that would be speculative". The Crown made no attempt to identify the missing funds, so as to show they were the funds referred to in the direction and had not been recovered by the Bank. At its highest the evidence shows that the appellant had control of $10,700 more than the Bank recovered. I would therefore allow the Crown appeal only to the extent of ordering that the appellant pay a fine of $10,700. In default of payment the appellant is sentenced to a term of 6 months imprisonment consecutive pursuant to s. 462.37(4)(a)(ii) and (b) of the Criminal Code. 27 In my view, given the Crown's failure to prove even on a balance of probabilities that the appellant had possession or control of the missing funds, I can see no basis for making the order for a fine in lieu of forfeiture except as stated above. 34. On the basis of the evidentiary record here, it is unclear whether the Crown proved that the $2.8M was traceable to the Applicant. In fact, on the basis of the forensic investigator’s evidence it appeared that large sums of money could not be traced to the Appellant. The witness acknowledged that the Applicant did not appear to be living a luxurious lifestyle and that, although the scheme may have been fraudulent and funds were invested in ways that the investors did not approve, the monies were lost through various trading activities and the Applicant did not appear to “benefit” personally from the fraud in the sense of diverting monies to off shore accounts (pp.530ff). Additionally, some of the money appeared to be paid to Hong Xiao (p.540). As Justice Baltman recently noted in R. v. Dieckman 2014 ONSC 717 (Sup. Ct.): 67 In my view, the emphasis on "benefit" in both Dwyer and A.S. is consistent with the exception allowed by the Supreme Court in Lavigne (at para. 28) for someone who "did not profit"; in all those cases the Court is motivated by the underlying purpose of the provision, namely to deprive the offender of his or her benefit so that crime does not pay. If, as in this case, a significant portion was divided at source after being held only briefly by the offender, and never inured to her benefit, it would be both illogical and unfair to order her to repay that portion. 35. This potential ground of appeal is not one that could be effectively presented by the Applicant. Trial courts continually struggle with the issue and in order to properly present the argument, it will require an extensive review of the evidentiary record in addition to making complex legal arguments. C. CONCLUSION 36. Although the time from the Applicant’s conviction to the appeal is not particularly lengthy, the case has had a tortious inmate appellate history. Without the aid of counsel to assist him, the Applicant has made various submissions to this Court at various times seeking to revisit orders earlier made and seeking to make submissions on the basis of issues that would not amount to errors warranting this Court’s intervention. It is important that justice be seen to be done in this case. It is also important that whatever arguable grounds that might exist for appealing the conviction be properly presented to the Court in a way that will allow the Court to properly adjudicate the issues. As Justice Doherty noted in R. v. Stevenson 2013 ONCA 645 at paragraph 9: The “interests of justice” considered in the context of s. 684 usually refers to the appellant’s ability to present his appeal without counsel and the court’s ability to determine the appeal without the assistance of counsel: see R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.). The phrase is, however, flexible enough to encompass other societal interests that may arise in any particular s. 684 application. x. There is no question that the Applicant wants counsel. If he is eligible for an appointment of counsel under s.684 of the Criminal Code he will be required to let the appeal be perfected by that counsel and be presented in a manner that experienced competent counsel chooses to do so or risk losing that funding. Justice Doherty described this in the following terms in considering a situation where a legally aided client was of the view that he could dictate the conduct of the appeal and when legal aid refused to authorize a change of counsel he was required to ask the Court to appoint one: [14] It would appear that the breakdown in the client-solicitor relationship was a result of the appellant’s genuine, albeit misguided belief, that he was entitled to both require that senior counsel do the preparation and dictate the arguments that would be advanced on the appeal. The appellant acted unreasonably in taking those positions. Hopefully, he now understands that he must let senior counsel decide what work can be done by junior counsel and he must accept the reasonable advice of counsel as to the issues that can properly be raised on appeal. The appellant must let counsel do his or her job and must accept reasonable legal advice or face the prospect of proceeding without further public funding. It is in everyone’s interest that the Applicant have counsel present his appeal and that is what the interests of justice require here. x. It is respectfully submitted that the Court should appoint counsel pursuant to s.684 of the Criminal Code and that the Court of Appeal Duty Counsel and/or Legal Aid Ontario can provide him with a list of counsel who would be prepared to take such an appointment. DATED THIS 10th DAY OF SEPTEMBER, 2014. ALL OF WHICH IS RESPECTFULLY SUBMITTED, Michael Lacy GREENSPAN PARTNERS LLP Pro Bono Duty Counsel

Post Views : 210