COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Vuong, 2020 ONCA 516
DATE: 20200820
DOCKET: M51437 (C66253 & C66366)
Roberts J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen
Respondent
and
April Vuong and Hao Quach
Appellants (Applicants)
Counsel:
April Vuong and Hao Quach, acting in person
David Parry, appearing as duty counsel
Jeffrey Wyngaarden, for the respondent
Heard: August 10, 2020 by videoconference
REASONS FOR DECISION
[1] On July 5, 2018, the applicants were convicted of defrauding numerous investors over several years of more than $5 million dollars in an elaborate investment scam in the nature of a “Ponzi” scheme. On October 28, 2018, they were sentenced to 6 years’ imprisonment, less credit for strict bail conditions and pre-trial custody. The trial judge ordered that they pay a $3,567,992 fine in lieu of forfeiture.
[2] The applicants have appealed their convictions and sentences, raising the following issues:
i. The trial judge erred in dismissing their s. 11(b) Charter application;
ii. The trial judge erred by not requiring the Crown’s forensic accountant to be qualified as an expert witness;
iii. The pre-trial application judge erred in denying their Rowbotham application;
iv. The verdict is unreasonable;
v. Their sentences are demonstrably unfit.
[3] The applicants seek the appointment of counsel under s. 684 of the Criminal Code or in the alternative partial funding for counsel to assist them with their appeal. They say they were hampered in their defence at trial because they were not represented by counsel and are unable to represent themselves adequately on their appeal. They claim they are indigent. The Crown opposes their application.
[4] In order to succeed on their s. 684 application, the applicants must satisfy the following criteria:
i. It appears desirable in the interests of justice that they should have legal assistance; and
ii. It appears that they have insufficient means to obtain the necessary legal assistance.
See: R. v. Adams, 2016 ONCA 413, at para. 24; R. v. Staples, 2016 ONCA 362, at paras. 31-32.
[5] I am not persuaded that the applicants have met these criteria.
[6] First, the applicants have not demonstrated that it is desirable in the interests of justice that they should have legal assistance on their appeal. That it may be better or easier if the applicants had counsel, however, is not the test. The question is whether the applicants cannot effectively present their case on an appeal without the help of a lawyer or the court cannot properly decide the case on appeal without assistance from counsel: Adams, at para. 26.
[7] I am not convinced that either factor applies here. The issues raised on appeal are discrete and straightforward, and for the most part, were already canvassed at trial. The applicants do not require assistance to understand the myriad fraudulent transactions that they created and put into motion. They are intelligent, articulate and well educated. They showed facility with the relevant facts and legal issues at trial and on this motion. They are capable of advancing their claims of error before a panel of this court and the court does not require the assistance of counsel to determine them.
[8] Second, the applicants have failed to provide adequate evidence of their financial need: they have not demonstrated that they have exhausted all other means of paying for counsel, including family members and the legal aid process, nor have they been clear and transparent in disclosing their financial affairs: Staples, at para. 40.
[9] As Gillese J.A. noted in Staples, at para. 42, the applicants “cannot satisfy [their] burden of showing that [they] have exhausted the legal aid process when [their] rejection was due to [their] own incomplete financial disclosure.” That is the case here.
[10] The applicants were denied legal aid for their appeal based on financial ineligibility. In its March 27, 2019 letter, the Provincial Appeals Office of Legal Aid Ontario explained its reasons for upholding the Area Committee’s refusal of legal aid certificate coverage:
Because both you and your spouse have been without income for a considerable period of time, Legal Aid presumes that you still have access to other financial sources. Given the nature of your charges, the potential case cost, and the fact that they have thus far assisted you financially with shelter, living expenses, and legal fees, and have acted as your sureties, Legal Aid considers your mother, in-laws, family, and friends as part of the assessment for the purposes of financial eligibility. Their income and assets are presumed to still be available to assist you with legal fees.
In the event that these individuals are now unable to assist you, they must attend for financial assessment in order to confirm this. [Emphasis added.]
[11] Although the applicants dispute their relatives’ assistance with their legal fees and their continuing ability to assist them financially, they do not dispute that they have provided them with financial assistance. More significant, there is no indication that the applicants’ family members have attended for the financial assessment proposed by Legal Aid to confirm that they were unable to provide financial assistance.
[12] Moreover, notwithstanding that the applicants understand the necessity for making full financial disclosure, they have failed to do so. The bald statements of impecuniosity contained in Mr. Quach’s affidavit on this motion do not satisfy the applicants’ burden. Nor do the applicants’ two recent personal bank statements or the short excerpt from the Ontario Securities Commission’s forensic report provide the necessary support for their claim of indigency. As noted by Justice Hill in his reasons for dismissing the applicants’ Rowbotham application, they maintained numerous personal and corporate bank accounts in Canada and the world. There has been scant and inadequate production of these documents nor has any real effort been made to explain the disappearance of the millions of dollars from the fraud.
Disposition
[13] For these reasons, the application is dismissed.
“L.B. Roberts J.A.”