Court of Appeal for Ontario

Date: 20211012 Docket: C66253 & C66366

Before: Hoy, Trotter and Paciocco JJ.A.

Docket: C66253

Between: Her Majesty the Queen Respondent

And: April Vuong Appellant

Docket: C66366

And Between: Her Majesty the Queen Respondent

And: Hao Quach Appellant

Counsel: April Vuong, acting in person Hao Quach, acting in person Jeffrey Wyngaarden, for the respondent

Heard: September 7, 2021 by video conference

On appeal from the convictions entered on July 5, 2018, and the sentence imposed on October 23, 2018, by Justice M.J. Lucille Shaw of the Superior Court of Justice, sitting with a jury, with reasons at 2018 ONSC 6298.

Hoy J.A.:

[1] Following a trial by judge and jury, the appellants, April Vuong and her spouse, Hao Quach, were convicted of fraud over $5000. The trial judge described it as a large-scale and sophisticated investment scam that took place over five years, defrauding numerous people of $5,175,000.

[2] Each of the appellants was sentenced to 6 years’ imprisonment, less 11 days’ credit for pre-trial custody and 3 months’ Downes credit for bail conditions: R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.).

[3] The appeals were scheduled, peremptory on the appellants. The appellants represented themselves on appeal.

[4] They appeal their convictions, arguing that:

1. the application judge [^1] erred in finding that their right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time had not been infringed and dismissing their application for a stay;
2. the trial judge erred by permitting Mr. Anthony Long, a senior forensic accountant with the Enforcement Branch at the Ontario Securities Commission (“OSC”), to testify as a non-expert witness; and
3. in the case of Mr. Quach only, the verdict was unreasonable.

[5] The appellants also seek leave to appeal sentence. They argue that the sentences imposed are demonstrably unfit, that they should have been granted more Downes credit for the time spent on bail, and in the case of Mr. Quach, that the sentence does not reflect what he says is his lesser culpability.

[6] For the following reasons, I would dismiss the appeal against conviction, grant leave to appeal sentence, but dismiss the appeal against sentence.

The s. 11(b) application

The application judge’s reasons ([2017 ONSC 3808](/on/scj/2017/3808))

[7] The total delay between the appellants’ date of arrest (October 16, 2013) and the scheduled end of the original trial date (March 27, 2017) was 41.25 months. [^2] The application judge found that 5.25 months of the total delay constituted defence delay and the net delay was therefore 36 months – significantly above the ceiling created by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and therefore presumptively unreasonable.

[8] The application judge then considered whether there were exceptional circumstances that justified the delay.

[9] He concluded that the case was not a particularly complex one, and the delay was accordingly not justified on that basis alone: Jordan at para. 77.

[10] However, the trial date had been set before Jordan was released on July 8, 2016. Accordingly, the application judge applied the principles in R. v. Morin, [1992] 1 S.C.R. 771, to determine whether the pre-Jordan delay was not unreasonable under Morin and the Crown could rely on the transitional exceptional circumstance provided in Jordan.

[11] The application judge noted that the appellants had not waived their s. 11(b) rights during the period of delay. Applying Morin, he allocated the reasons for the total delay as follows:

a. inherent time requirements of the case- 12.75 months b. other neutral time- 8 months c. institutional delay- 12 months d. Crown delay- 3.25 months e. defence delay- 5.25 months

[12] The application judge was satisfied that the passage of time had not impaired the appellants’ interest in a fair trial. Further, the period of institutional-Crown delay was within the Morin guidelines, the charges were serious, and very little prejudice could be attributed to the delay. He attributed the stigma or stress brought about by disgruntled investors not to the criminal prosecution, but rather to the conduct the appellants admitted to the OSC in regulatory proceedings that pre-dated the criminal proceedings. Balancing the relevant factors, he concluded that the period of delay was not unreasonable, and he would not have granted a stay under the Morin framework.

[13] Referring to the factors in Jordan, the application judge found as follows: the Crown’s reliance on the previous law was reasonable; Brampton is a jurisdiction with significant institutional delay problems, which necessarily take time to change; and there was no evidence of repeated mistakes or missteps by the Crown or police.

[14] The application judge concluded that the transitional exceptional circumstance under Jordan applied. The time the case had taken was justified based on the parties’ reasonable reliance on the previous law.

The appellants’ arguments

[15] The appellants argue that the application judge erred in his allocation of the total delay under the Morin principles. If all the appellants’ arguments are accepted, the total institutional delay under Morin would be 16.25 months and the Crown delay would be 6.75 months. The appellants submit that, properly allocated, the delay was unreasonable under Morin and, therefore, the transitional exceptional circumstance under Jordan did not apply and the proceedings should have been stayed.

[16] They also argue that the application judge erred in his assessment of the prejudice to them resulting from the delay. They submit that he should not have related much of the prejudice they suffered to the OSC proceeding, and should have inferred significant prejudice to them from the delay: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Villanti, 2020 ONCA 755.

[17] I am not persuaded that there is any basis to interfere with the application judge’s careful allocation of the total delay or his assessment of the prejudice attributable to the delay. The appellants make what I would characterize as eight submissions with respect to the allocation of delay. Below, I address each of those submissions. Then I address the issue of prejudice.

The appellants’ specific submissions on the allocations

[18] First, the appellants submit that the period from March 21, 2014 to May 1, 2014 (1.25 months) which the application judge allocated to inherent time requirements, finding the defence needed that time period to review the “third wave” of disclosure that the Crown provided on March 21, 2014, is properly allocated to Crown delay because of its piecemeal disclosure.

[19] I disagree. The application judge noted that the charges covered a long period of time and the disclosure in this case was voluminous. The application judge did not find that it was unreasonable that all disclosure was not provided at once or that the disclosure that had been provided was not adequate to enable the appellants to make decisions necessary to move the case forward. Indeed, he properly accepted that disclosure need not be complete before meaningful steps are taken. In response to an argument from the appellants that delay should be allocated to the Crown in relation to other disclosure, he wrote that “[t]here is no right to insist that all disclosure be complete before setting dates to proceed.” Further, where issues with disclosure actually caused delay, he allocated the delay to the Crown: he allocated the period from May 1 to June 25, 2014 to the Crown, because in his view the Crown should have provided disclosure of materials in its possession by May 1.

[20] Second, the appellants argue that the period from June 23 to July 28, 2014 (1 month), which the application judge allocated to “other neutral time” because the “defence wanted additional time to renew [sic] disclosure and to meet with the Crown prior to setting a [judicial pre-trial] and then both sides wanted to adjourn for further discussions”, should be allocated to Crown delay.

[21] I disagree. The application judge found that “both sides acquiesced in this delay and were content that the case proceed as it did.” This time period is properly considered neutral delay.

[22] Third, the appellants say the two-week period from September 15 to September 29, 2014 (0.5 of a month) should be considered Crown delay, and not “other neutral time”, because there was no communication from the Crown to set a judicial pre-trial (“JPT”).

[23] I disagree. On July 28, 2014, the matter was adjourned to September 15, peremptory on the appellants to set a JPT on that date. On September 15, the appellants expressed a desire to set a Crown pre-trial, before a JPT. The Crown indicated that a Crown pre-trial could be completed in two weeks, resulting in the matter being adjourned to September 29, 2014. While the appellants may have had some difficulty in reaching the Crown before September 15 to set up a Crown pre-trial, the September 15 date, peremptory on the appellants, was not conditional on having a Crown pre-trial first.

[24] Fourth, and in addition to the above challenges to specific allocations, the appellants argue more generally that the total time (13.25 months) allocated to inherent time requirements and other neutral time was excessive. The appellants submit that from their arrest in mid-October 2013 until a date was set for a JPT on November 24, 2014, the disclosure was “piecemeal” and a change in Crown counsel occurred, and changes in counsel result in delay.

[25] I reject this further argument. As indicated above, the disclosure was voluminous. As the Crown argues, the appellants’ counsel was still reviewing prior disclosure when new disclosure was provided on March 21, 2014, indicating that it was the volume of the disclosure, rather than the pace of disclosure, that necessitated some delay. As indicated above, meaningful steps on the case could be taken before full disclosure.

[26] Changes in counsel can but do not always result in delay: R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 105. There is nothing to indicate that the change in counsel resulted in delay. It was the appellants’ counsel who asked for an adjournment on September 15 to schedule a Crown pre-trial.

[27] Fifth, the appellants argue that the period from January 22, 2015, when the appellants’ counsel applied to be removed from the record, to February 19, 2015, which was the date the JPT was adjourned to (a 0.75 month delay) should have been allocated to the Crown, not the defence. The appellants were prepared to proceed with or without counsel.

[28] I reject this argument. While the appellants indicated that they were prepared to proceed to trial with or without counsel, they also indicated that they required some time to obtain and review the voluminous disclosure. The Crown was prepared to conduct the JPT that day. The appellants were not.

[29] Sixth, the appellants say the one month allocated to inherent time requirements in the period from April 1, 2015 to the start of the preliminary inquiry on December 14, 2015, on the basis that the parties would not have been prepared to immediately start the preliminary inquiry, should have been allocated to institutional delay. The preliminary inquiry dates were set on March 31, 2015. The parties had ample time to prepare before the scheduled date of December 14, 2015, without the need for additional time.

[30] I reject this argument. The application judge allocated 7.5 months of the period between April 1, 2015 and December 14, 2015 to institutional delay. The time reasonably required to prepare should not form part of the institutional delay: R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177 at para. 32.

[31] Seventh, the appellants take issue with the three months between May 25, 2016 and the scheduled trial date of February 18, 2017 allocated to other neutral time, which they say should have been allocated to institutional delay. The application judge was satisfied that if the appellants had taken the pre-trial judge, Durno J., up on his offer to reduce the institutional delay, Durno J. could have found a trial date at least 3 months earlier. I understand the appellants to argue that the transcript does not reflect that Durno J. actually offered an earlier trial date.

[32] I reject this argument. On May 24, 2016, Durno J. set trial dates for February 2017. He advised that he was willing to revisit this schedule if needed. More than four months prior, he had instructed that any concerns about delay should be addressed promptly. None of Durno J.’s announcements led to any action by the appellants on the issue of delay until December 12, 2016, when, post-Jordan, they made a request to bring a s. 11(b) application. Their inaction belies their argument that the delay was unreasonable. There is no basis to interfere with the application judge’s conclusion that the appellants could have secured an earlier trial date.

[33] Finally, the appellants submit the 1.25 months in the period between May 25, 2016 and the scheduled trial date of February 13, 2017 that the application judge allocated to inherent time requirements to prepare for trial should be regarded as institutional delay. The appellants did not seek additional time to prepare for trial. They had ample time to prepare for trial during that period.

[34] I reject this argument. At the time, the appellants were without counsel. They had not yet pursued their Rowbotham application. One month to prepare and make oneself available for trial is a reasonable allocation for a case of this nature and the time allocated to institutional delay should not include the time that the defence reasonably required to prepare: see Tran.

The application judge’s assessment of prejudice

[35] The application judge explained why, in the circumstances, he did not infer substantial prejudice to the appellants from the delay.

[36] While some prejudice could be inferred, most was the result of the nature of the offence. The appellants made admissions in their settlement of the regulatory investigation launched by the OSC in December 2011. The stigma or stress brought about by disgruntled investors, and the appellants’ inability to work in accounting or financial services, were the result of these admissions – not the delay in the criminal proceeding. There is no basis to interfere with that finding.

[37] The application judge explained why he was satisfied that the delay had not impacted the appellants’ fair trial interests: the complainants were videotaped; much of the evidence consisted of banking and other records; and, as a result of the OSC proceedings which covered much of the same ground, the appellants’ recollection of events “were no doubt memorialized in some manner back in 2012.”

[38] Further, the appellants’ failure to “take Durno J. up on his offer” to move the trial to an earlier date supported the inference that they were not overly concerned about the delay and not suffering great prejudice.

[39] There is no basis to interfere with the application judge’s assessment of prejudice. His conclusion is bolstered by the fact that the trial was later adjourned twice, at the appellants’ request, and the fact that they did not raise delay as an issue until many months after Jordan was released.

[40] I would add this. While the application judge rejected that case complexity justified delay over the Jordan ceiling on its own, he did not go on to consider case complexity as a factor under his transitional exception analysis. Consideration of this factor strengthens his conclusion that the delay was reasonable: Morin at pp. 791-92; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135. The case involved voluminous disclosure and charges covering a significant time period. In addition to the s. 11(b) application, the appellants eventually brought a multi-faceted application for a stay of proceedings.

The ruling permitting Mr. Long to testify as a fact witness

[41] As noted above, Mr. Long is a forensic accountant employed by the OSC. He was retained by the Peel Regional Police in July 2016 to, among other things, review the relevant evidence gathered by police and prepare a “Source and Application of Funds” Analysis. Mr. Long was not involved in the OSC’s regulatory investigation of the appellants.

[42] The Crown intended to call Mr. Long as a fact witness on the basis that he would not be giving any opinion evidence as an expert. His evidence would be limited to following the flow of money deposited by the various complainants through the appellants’ bank accounts.

[43] The appellants opposed the Crown calling Mr. Long as a witness at trial on the basis that he was in a conflict of interest and his evidence was biased, given his employment with the OSC.

[44] The appellants argued that Mr. Long’s conflict of interest amounted to an abuse of process and, for a second time, sought a stay of proceedings for this and other reasons. The appellants further argued that if Mr. Long were to give evidence, he could only be called as an expert witness, and not a fact witness.

[45] The trial judge dismissed their second application for a stay. As related to Mr. Long, she held that the issues the appellants raised could be explored in cross-examination and Mr. Long could, therefore, be called as a witness at trial: R. v. Vuong and Quach, 2018 ONSC 3348 at para. 90.

[46] At para. 94, however, the trial judge reviewed the report that Mr. Long had prepared and concluded that he was not merely a fact witness:

In his report, he makes findings, for example, that payments to investors could only have been funded by other investor deposits. That is an opinion. He also opines that the trading was speculative and not profitable. Those are also conclusions made based on his review of the underlying facts and not just a resuscitation of the facts based on his experience and knowledge as a forensic accountant.

[47] The trial judge concluded that Mr. Long could be called as a witness at trial but had to be qualified as an expert to provide his opinion evidence: at para. 98.

[48] The day after her ruling was released, this court released its decision in R. v. Ajise, 2018 ONCA 494, 361 C.C.C. (3d) 384, aff’d 2018 SCC 51, [2018] 3 S.C.R. 301. In Ajise, the majority held that a Canada Customs and Revenue Agency (“CCRA”) investigator did not have to be qualified as an expert witness because the witness offered only factual information that did not require expertise to present and could be assessed by the jury as a matter of logic and common sense.

[49] In light of Ajise, the trial judge invited further submissions on whether Mr. Long was required to be qualified as an expert. On June 4, 2014, the trial judge released a further ruling: R. v. Vuong and Quach, 2018 ONSC 3631. Relying on Ajise and R. v. Tang, 2015 ONCA 470, also discussed below, she reversed her first ruling and held that Mr. Long could be called as a non-expert witness. However, she ruled that Mr. Long would not be permitted to proffer any opinion evidence at trial.

[50] The appellants essentially advance two arguments. First, they argue that this case is different from Ajise and Tang and the trial judge accordingly erred in relying on them to permit Mr. Long to testify as a fact witness. Second, they argue that although the trial judge directed that Mr. Long would not be permitted to proffer any opinion evidence, he in fact did so.

[51] There is no bright line for determining whether a witness is offering factual testimony that does not require expertise to present and can be assessed by the jury as a matter of logic and common sense. I need not determine whether the trial judge was correct in reversing her initial determination. In Ajise, although the Crown had not made explicit reference to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, Sharpe J.A. held that even had the trial judge erred, the curative proviso would apply. The Supreme Court of Canada dismissed Mr. Ajise’s appeal. In brief oral reasons, a unanimous court endorsed Sharpe J.A.’s approach to the curative proviso without deciding whether the expert evidence rules applied to the testimony offered by the CCRA investigator. The court held that given that there was no miscarriage of justice, the curative proviso was properly relied on.

[52] In this case, the Crown squarely raised the proviso in its oral submission that there was no prejudice to the appellants. The proviso clearly applies. Even if the trial judge erred in permitting Mr. Long to testify as a fact witness, no substantial wrong or miscarriage of justice occurred.

[53] I note three significant points. First, the appellants accept that, while not formally qualified as an expert witness at trial, if Mr. Long’s evidence constituted opinion evidence, given his expertise, Mr. Long was, in fact, qualified to provide it. Second, the appellants did not contest any part of Mr. Long’s evidence and do not identify any part of it as incorrect. Third, the appellants’ guilt turned primarily on whether they had deliberately lied to investors and obtained money because of those lies. Mr. Long’s evidence did not touch on those questions.

[54] In my view, in the circumstances, permitting Mr. Long to testify as a non-expert witness resulted in no prejudice to the appellants.

[55] In oral argument, Mr. Quach submitted that while the appellants accept that Mr. Long was, in fact, qualified to provide any opinions he provided, had the trial judge qualified Mr. Long as an expert, they would have sought an adjournment “to deal with him as an expert”. That would have been the appellants’ third request to adjourn the trial and been made almost a year after they brought their s. 11(b) application. The Crown responds that the appellants knew well before trial that the Crown was going to call Mr. Long as a witness. As I have said, the appellants do not contest any part of Mr. Long’s evidence or identify any part of it as incorrect. I remain of the view that, in the circumstances, permitting Mr. Long to testify as a fact witness resulted in no prejudice to the appellants.

[56] I turn now to Mr. Quach’s argument that the verdict was unreasonable.

Unreasonable Verdict

[57] Mr. Quach argues that the verdict was unreasonable because there was no evidence proving he had the mens rea for fraud. Ms. Vuong communicated with investors. He says his role differed from that of Ms. Vuong and there was little evidence of direct communication between him and the investors.

[58] I reject this argument. The verdict was soundly grounded on evidence that both appellants were knowing and active participants in the fraudulent scheme.

[59] Mr. Quach co-founded and ran Systematech Solutions Inc., the corporate vehicle for the fraud. He had signing authority over Systematech’s accounts. Payments flowed through Systematech’s accounts and his personal banking accounts. He testified that he and Ms. Vuong “run Systematech together” and “our responsibility is… joint.” He used investors’ money for personal purchases. He signed many of the promissory notes Systematech issued to investors. While the notes represented that the investment was risk-free, he admitted that he knew the investments were not risk-free.

Sentence Appeals

[60] Each of the appellants was sentenced to 6 years’ imprisonment, less 3 months’ Downes credit for bail conditions and 11 days’ credit for pre-trial custody.

[61] The appellants argue that the sentences imposed are demonstrably unfit and that they should have been granted more Downes credit. Mr. Quach also argues that the sentence imposed on him does not reflect what he says is his lesser culpability.

[62] I reject these arguments.

[63] This court can only intervene to vary a sentence if it is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[64] The trial judge found that this was a large-scale and sophisticated fraud in the nature of a “Ponzi scheme” that took place over a period of five years. The sentences imposed were well within the range for similar large-scale frauds and are not demonstrably unfit.

[65] There is no formula for considering what credit, if any, is to be granted for the time spent on bail. Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody. Provided that this discretion is exercised reasonably, the trial judge’s weighing of this mitigating factor is entitled to deference: R. v. Dodman, 2021 ONCA 543.

[66] The trial judge considered the stringency of the appellants’ bail conditions. She concluded that the appellants’ bail conditions were “somewhat restrictive” but were not like the “virtual house arrest” the accused was under in Downes. Her exercise of discretion was reasonable and is entitled to deference.

[67] Based on the record, the trial judge reasonably found that although Mr. Quach did not communicate directly with all the victims, he was as culpable as Ms. Vuong. The trial judge found that he and Ms. Vuong “operated as a team” and “used the victims’ funds as their personal piggy-bank and, when things got messy, to pay other investors in the ‘Ponzi scheme’”. Mr. Quach was “an active participant in the fraudulent scheme to lure more victims to invest money so their money could be used to pay other victims.” Further, she noted that during sentencing submissions, Mr. Quach’s position was that he was equally culpable as Ms. Vuong.

[68] There is no basis for this court to interfere with the sentences imposed.

Disposition

[69] I would dismiss the appeals, grant leave to appeal sentence, but dismiss the appeals against sentence.

Released: October 12, 2021 “AH” “Alexandra Hoy J.A.” “I agree. Gary Trotter J.A.” “I agree. David M. Paciocco J.A.”

Footnotes

[^1]: The application judge was not the trial judge. [^2]: There is no dispute that the appellants caused the delay after March 27, 2017. The trial originally scheduled for February 2017 was adjourned twice at their request, and ultimately concluded in June of 2018. The first trial was adjourned so that the appellants could bring their s. 11(b) application. The second trial was scheduled to commence on September 25, 2017 but was adjourned as a result of the illness of Ms. Vuong’s mother.