COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang, 2014 ONCA 632

DATE: 20140911

DOCKET: C56745

Gillese J.A.

BETWEEN

Her Majesty the Queen

Responding Party

and

Weizhen Tang

Applicant

Counsel:

Weizhen Tang, appearing in person

Michael Lacy, appearing as duty counsel

John Pearson, for the responding party

Heard: September 10, 2014

On application for an order pursuant to s. 684 of the Criminal Code, on the appeal from the conviction entered on October 30, 2012 and the sentence imposed on February 1, 2013 by Justice Alfred J. O’Marra of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The Applicant brings a further s. 684 application, seeking the appointment of counsel for his appeal against conviction and sentence. For the reasons that follow, I would make the order but limit it to the appointment of counsel for only the sentence appeal.

BACKGROUND IN BRIEF

[2] Following a trial by judge and jury, the Applicant was convicted of fraud over $5,000. The fraud involved an investment fund managed by the Applicant which he called the “Overseas Chines Fund”. He raised over $50 million between January of 2006 and February of 2009. Of that money, $26 million was returned to investors. He was sentenced to imprisonment for 6 years and fined almost $2.9 million in lieu of forfeiture, with 5 years’ imprisonment consecutive in default.

[3] The Applicant appealed against conviction and sentence. He applied for legal aid to fund his appeal but was refused. He has exhausted all appeals from that decision.

[4] He brought an application before MacPherson J.A. for bail. In the course of deciding that application, MacPherson J.A. concluded that, on the material before the court at that time, the Applicant had failed to satisfy the court that his appeal had any merit.

[5] The Applicant applied for a review of MacPherson J.A.’s order. Justice Rosenberg considered the matter and concluded that there was not sufficient merit to warrant the appointment of counsel.

[6] When the Applicant’s appeal was next spoken to, duty counsel identified certain potential grounds of appeal in respect of both the conviction and the sentence appeal. The Applicant submitted that there were additional documents that he needed in order to proceed with his conviction appeal. These documents related to the Rowbotham application that he had unsuccessfully made in the proceedings below. Justice Nordheimer heard the Applicant’s Rowbotham application, and dismissed it on the basis that the Applicant’s evidence with respect to his financial means to retain counsel was inconsistent and unsatisfactory. Justice Nordheimer further found that the Applicant was able to adequately conduct his defence without the aid of counsel and that legal representation was not “essential” to a fair trial.

[7] Based on the submissions of duty counsel and the Applicant, the court ordered the Crown to produce further materials. The court also asked duty counsel to review the material and assist the Applicant in revisiting the issue of a s. 684 application, if the circumstances warranted.

[8] The Applicant, with the assistance of duty counsel, then brought this fresh application for an order pursuant to s. 684. The court is indebted to duty counsel for his assistance with this matter.

ANALYSIS

[9] Section 684 provides that a judge of the court of appeal may assign counsel to act on behalf of an accused where, in the opinion of the 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.

[10] For the purposes of this application, but for no other purpose, the Crown does not take issue with the second requirement in s. 684, namely, that the Applicant has not sufficient means to obtain legal assistance for his appeals.

[11] Duty counsel, on behalf of the Applicant, submits that there are two arguable grounds of appeal in respect of the conviction appeal. The first ground relates to Nordheimer J.’s dismissal of the Applicant’s Rowbotham application. The second relates to the evidence of the Ontario Securities Commission investigator whose evidence at trial was admitted on the basis that he was a forensic accounting expert.

[12] The “interests of justice” requirement in s. 684 begins with an inquiry into the merits of the appeal: see R. v. Johnson [2013] O.J. No. 4851 (C.A.), at para. 16. Like my colleagues who have reviewed the merits of the conviction appeal for the purposes of bail and the previous s. 684 application, I do not find sufficient merit in the conviction appeal to meet the interests of justice requirement. In this regard, I would highlight three points. First, the Applicant testified at trial and admitted the actus reus of many of the allegations, although he denied that he had criminal intent. Second, the decision on the Rowbotham application was a discretionary one and based on the articulation of the correct legal principles. Third, the expert’s evidence related largely to the flows of money in and out of the Applicant’s accounts. Much of this information was similar to that which the Applicant himself gave to the investors at a meeting.

[13] However, the ground of appeal raised in relation to the sentence appeal raises an arguable issue, as the Crown fairly conceded. The issue relates to the imposition of a fine in lieu of forfeiture. This issue presents challenging legal questions and the Applicant will need the assistance of counsel in order to argue it effectively.

[14] Accordingly, the interests of justice warrant the appointment of counsel for the sentence appeal.

DISPOSITION

[15] An order shall go granting the application in part and appointing counsel pursuant to s. 684 of the Criminal Code to act on behalf of the Applicant in respect of his sentence appeal. I would ask that Duty Counsel and/or Legal Aid Ontario provide the Applicant with a list of the names of counsel who would be prepared to take such an appointment.

“E.E. Gillese J.A.”