CITATION: R. v. Vuong, 2016 ONSC 7277

COURT FILE: CRIMJ(P) 1348/15

DATE: 2016 11 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. A. Sinnadurai, for the Respondent

Respondent

• and -

APRIL VUONG and HAO QUACH

E. Lam, for the Applicants

Applicants

HEARD: November 15-16, 2016 at Brampton

JUDGMENT – ROWBOTHAM APPLICATION

HILL J.

TABLE OF CONTENTS

Para. No.

INTRODUCTION................................................................................................ 1

THE CRIMINAL ALLEGATION.......................................................................... 10

THE FRAUD TRIAL.......................................................................................... 22

NATURE OF THE APPLICATION...................................................................... 26

WHETHER THE APPLICANTS ARE INDIGENT

The Evidence................................................................................................ 33

Arguments.................................................................................................... 61

Governing Principles..................................................................................... 68

Discussion.................................................................................................... 80

FAIR TRIAL CONSIDERATIONS

The Evidence................................................................................................ 94

Arguments.................................................................................................. 106

Governing Principles................................................................................... 115

Discussion.................................................................................................. 119

CONCLUSION................................................................................................ 134

INTRODUCTION

[1] April Vuong and Hao Quach, married to one another in 1999, are scheduled for a jury trial to commence on February 13, 2017 on the following criminal charge:

That they, within a period of five (5) years on or between the 1^st day of October, 2007 to the 30^th day of October, 2012, at the City of Brampton, in the Central West Region, unlawfully did by deceit, falsehood or other fraudulent means defraud the public of a sum of money, of a value exceeding five thousand dollars, contrary to section 380(1)(a) of the Criminal Code of Canada.

[2] There is a prospect of 2 weeks of pretrial motions and a 3-to-4 week proceeding with a jury.

[3] The applicants have not privately retained counsel to represent them in defending the criminal allegation.

[4] The applicants have been refused judicare assistance through the Legal Aid Ontario (LAO) programme.

[5] The applicants claim to be indigent and to be in need of legal representation in order to have a fair trial.

[6] The Notice of Application states in part:

2. That the Applicants cannot afford to retain a lawyer privately.

3. That the charges are extremely complicated and serious. The matter has been set for a 4-week trial. The Crown will seek a lengthy penitentiary sentence if the Applicants are convicted.

4. That due to the complexity of the matter, the legal issues engaged, and the volume of evidence, the Applicants are not able to adequately defend themselves against these allegations and will be unable to make full answer and defence without counsel;

5. Such further and other grounds as the Applicants may advise and this Honourable Court may permit.

[7] The applicants seek an “Order to pay the reasonable legal fees for the defence of the within charges in accordance with the legal aid hourly tariff”.

[8] The Crown opposes the application.

[9] Because neither Ms. Lam nor Mr. Sinnadurai have been involved in the criminal proceedings, in addition to the Application Record, the cross-examination of the Applicants upon their filed affidavits, and the testimony of Constable Kelly Jackson, it was necessary for the court to access the indictment, the Rule 28 Judicial Pretrial (JPT) material and the two volumes of preliminary inquiry transcript.

THE CRIMINAL ALLEGATION

[10] The prosecution alleges that in the time period of 2007 to 2012 the applicants operated a Ponzi scheme defrauding the public through the vehicle of their business, Systematech Solutions Inc. (Systematech), an entity incorporated in June 1999. Ms. Vuong and Mr. Quach were respectively the President and CEO of Systematech.

[11] The Judicial Pretrial Form 17 in this case provided this synopsis:

[The applicants] sought to attract potential investors by offering a 12-15 percent return on investment through investing in global currency markets. These investors included personal acquaintances and business acquaintances. Ms. Vuong in her conversations with potential investors often spoke of her investment success and her lifestyle (which included international travel, property in Las Vegas, the numerous high end vehicles they owned, such as a Porsche 911 Turbo). The investors would sign promissory notes with Systematech in which they would agree to invest a sum of money in exchange for monthly interest payments and the return of the principal (or capital) with 30 days notice. The principal invested was personally guaranteed by the borrower, Systematech Solutions, and the promissory notes were signed by Ms. Vuong and Mr. Quach. Ms. Vuong would provide the investors with post-dated interest cheques at the time that they signed their promissory note.

[12] Exhibit #16, “Overview of the Investigation”, at p. 1 states:

The Accused and Co-accused during the five year time frame between 2007 and 2012, portrayed their elegant lifestyle through their purchases of high end motor vehicles such as: 2009 Porsche 911 turbo, Leasing of a 2009 Bentley, Purchase of a Mercedes C63 and a BMW X5, high end jewellery such as diamond rings and diamond bracelets. Their lavish lifestyle was eviden[t] as the couple would dine out at high end restaurants while trying to recruit new investors. They rented properties in Las Vegas and Mississauga, and travelled extensively throughout the globe to the Bahamas, Turkey, Bulguria, Hong Kong, Lebanon, Panama, Germany and Japan.

[13] It is alleged that once an investor transferred funds to the applicants, that principal sum was then used to pay the interest owed other investors. As the scheme expanded, the applicants stopped paying out interest and the principal requested back by the investors. During the relevant time period, the applicants opened at least 30 personal and corporate bank and brokerage accounts.

[14] The JPT Form 17 synopsis states:

It reached a point where many of the interest cheques were not negotiated as there were not sufficient funds.

In 2010 through to 2011, some investors began to ask Ms. Vuong and Mr. Quach for their principal back. Despite the personal guarantee in the promissory note and the repeated efforts by these investors, the majority of the investors did not recover their principal and their requests were generally ignored or put off.

[15] The Peel Regional Police Service (PRPS) investigation, based upon interviews, the execution of search warrants and the service of production orders, has identified at least 35 investors with a total loss approaching $12.5 million including nine individuals who sustained substantial losses:

Victim Name	Address	Investment Amount	Money Recovered
1. Gwen Edwards	1814 Scott St, San Fransico, California	$250,000	$0
2. Kare Anderson	15 Sausalito Rd, Sausalito, California	$230,000	$0
3. Joe Pelligrino		$550,000	$106,000 repaid in principal and interest
4. Alex Kolbasanik	706 Cedar Bend Dr, Kitchener	$100,000	$0
5. Quang Luong	5285 Richborough Dr, Mississauga	$288,00	$0
6. Ha Luong	5285 Richborough Dr, Mississauga	$75,000	$0
7. Daniel Tsai	3025 Pare St #613, Montreal, Quebec	$700,000	$263,220 repaid in principal and interest
8. Kenneth Lee	73 Timbercrest Dr, Port Moody, BC	$1,056,000	$0
9. Anita Andreychuk	73 Timbercrest Dr, Port Moody, BC	$650,000	$18,200 repaid in interest

[16] In October 2011, the Ontario Securities Commission (OSC) received a number of complaints from investors in Systematech. A cease and desist letter was issued to Systematech in December 2012 by the OSC. Many of the investors also brought civil suits against Ms. Vuong, Mr. Quach and Systematech.

[17] Some investors complained as well to the PRPS. On October 16, 2013, the applicants were arrested for fraud. Both gave statements denying culpability.

[18] The applicants were determined by the OSC to have committed regulatory offences including unlicensed trading in securities contrary to the Ontario Securities Act. Charges were laid.

[19] Exhibit #9, the OSC Settlement Agreement of November 2013, at paras. 6 and 18, states that:

6. During the Material Time, from the approximately $12.4 million raised from Investors, approximately $8.0 million was repaid to Investors, $3.6 million was lost in trading accounts controlled by the Respondents and approximately $691,000 was used for personal type payments including credit card payments, payments to retailers and cash withdrawals by Vuong and Quach.

7. Between January 1, 2007 to December 31, 2011 inclusive:

(a) $8,754,103.14 (Cdn) and $3,686,098.64 (U.S.) of Investor funds were deposited into the Bank Accounts; $10,000 (Cdn) of Investor funds was directly deposited into the Brokerage Accounts;

(b) $2,133,372.49 (Cdn) and $178,200.41 (U.S.) from other sources were deposited into the Bank Accounts;

(c) $7,384,688 (Cdn) and $3,827,949 (U.S.) was transferred from the Bank Accounts to the Brokerage Accounts. $6,105,878 (Cdn) and $1,553.290 (U.S.) was transferred from the Brokerage Accounts back to the Bank Accounts. A net amount of $1,278,810 (Cdn) and $2,274,659 (U.S.) was lost through trading in the Brokerage Accounts;

(d) $5,749262.04 (Cdn) and $2,218,419.01 (U.S.) was paid to Investors from the Bank Accounts to satisfy monthly returns and redemption payments;

(e) $668,587.29 (Cdn) and $22,275 (U.S.) was paid out of the Bank Accounts for personal type payments by Vuong and Quach, including credit card payments, payments to retailers and cash withdrawals. These two amounts are net of cash advances and cash deposits made by Vuong, Quach and their relatives; and

(f) $2,324,058.03 (Cdn) and $136,770.19 (U.S.) in other payments were paid out of the Bank Accounts.

(emphasis added)

[20] With the laying of a criminal fraud charge, the OSC did not proceed further with its regulatory prosecution electing to enter into a Settlement Agreement with the applicants followed by an omnibus OSC Order on November 14, 2013, which included these sub-orders:

(g) pursuant to clause 9 of subsection 127(1) of the Act [Securities Act], the Respondents jointly and severally pay an administrative penalty of $300,000 which amount is designated for allocation or for use by the Commission pursuant to subsection 3.4(2)(b) of the Act; and

(h) pursuant to clause 10 of subsection 127(1) of the Act, the Respondents jointly and severally disgorge $5,623,954.96 to the Commission which amount is designated for allocation or for use by the Commission pursuant to subsection 3.4(2)(b) of the Act.

[21] The applicants have made no payments toward these financial obligations.

THE FRAUD TRIAL

[22] At trial, the Crown intends to call approximately 15 witnesses including about 9 complainants as representative of those victimized by the alleged Ponzi scheme.

[23] The applicants represented themselves at the 2-day preliminary inquiry where two of the complainants testified, Josefh Pellegrino and Drew Hauser. The applicants have the extensive disclosure materials produced by the prosecution. The applicants were committed for trial on December 15, 2015.

[24] The applicants represented themselves at the judicial pre-trials before this court (Durno J.) on January 8 and May 24, 2016. On the latter date, the trial was scheduled for the sittings of February 13, 2017 on a “with or without” counsel basis.

[25] The pre-trial justice was advised that the voluntariness of the applicants’ statements to the police was in issue. He was also advised that abuse of process and s. 11(b) Charter motions might be brought. As to discreditable conduct evidence, the prosecution intends to introduce what it maintains is a forged letter showing Systematech to have a balance of $78.2 million with Scotia Bank and Scotia McLeod.

NATURE OF THE APPLICATION

[26] In R. v. Rushlow (2009), 2009 ONCA 461, 96 O.R. (3d) 302 (C.A.), at para. 17, the court summarized what has come to be known as “the Rowbotham test”:

In R. v. Rowbotham, 1988 147 (ON CA), [1988] O.J. No. 271, 41 C.C.C. (3d) 1 (C.A.), at p. 69 C.C.C., this court held that: [page 308]

[A] trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceeding against the accused until the necessary funding of counsel is provided.

(emphasis added

by Ont. C.A.)

[27] Accordingly, in the present application, drawing upon the language of Molloy J. in R. v. Williams, 2011 ONSC 7406, at paras. 5-6, the parties agreed that a Rowbotham order applicant must satisfy the court on balance that:

[5] In order to obtain a “Rowbotham Order”, an accused must establish three things:

(1) that he is ineligible for, or has been refused, Legal Aid and has exhausted all available appeals;

(2) that he is indigent and has no means to retain counsel otherwise; and,

(3) that his right to a fair trial will be materially compromised if he is forced to proceed to trial unrepresented by counsel.

[6] The applicant must establish all three conditions on a balance of probabilities. If any one of the conditions is not satisfied, the application will be dismissed.

(footnote omitted)

[28] While it is vitally important that the court not lose sight of the constitutional context for an accused person to be afforded a fair trial, “the decision on the Rowbotham application [is] … a discretionary one” to be exercised on a case-by-case basis: R. v. Tang, 2014 ONCA 632, at para. 12 (leave to appeal refused [2015] S.C.C.A. No. 486).

[29] In R. v. Hafizi, 2015 ONCA 534, at para. 7, the court stated:

Where a court is satisfied that an accused person’s right to a fair trial guaranteed by ss. 7 and 11(d) of the Charter would be infringed if he or she was not represented by counsel, the court can make what is called a Rowbotham order. That is, pursuant to R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), the court may order the state to fund counsel to represent the accused person so as to ensure trial fairness.

[30] The government’s resources to fund legal representation are limited: R. v. Le, 2016 ONCA 798, at para. 17. The primary obligation to assist those in financial need to obtain counsel rests with legal aid: R. v. Lubin, 2016 ONCA 780, at para. 9 (citing Cromwell J.A. (as he then was) in R. v. Assoun, 2002 NSCA 50, at para. 47: “Because of the pervasiveness of legal aid, it will be the rare and exceptional case that the court will find it necessary to appoint counsel”: Rushlow, at para. 19).

[31] The applicants applied for legal aid. The LAO Area Committee determined that they failed to qualify financially for legal aid assistance. On appeal, on March 16, 2016, the decision of the Area Committee was upheld with the appeal decision noting inter alia that:

(1) the applicants declared their only assets to be two Bank of Montreal (BMO) chequing accounts each with a balance of $0

(2) they declared no other assets

(3) on their submitted application, despite the limited assistance of some family members, given that the applicants “have been without income for a considerable period of time, it appears that the applicant[s] [have] access to other financial sources”

(4) as to the availability of other family members and persons considered relevant to providing financial assistance to the applicants:

Given the charge, the potential cost of the proceedings and the fact that the applicant’s mother, father-in-law, family and friends have assisted in acting as surety for the applicant and they are providing him with shelter and living expenses and have assisted with his prior legal expenses, the applicant’s mother, father-in-law, family and friends are considered part of the assessment unit, by Legal Aid financial policies. Their income and assets are considered available to assist the applicant with legal fees. In the event that the applicant’s mother, father-in-law, family and friends are unable to assist the applicant, they may complete financial assessments in order that a determination may be made as to their financial eligibility. In the absence of those individuals completing a financial assessment, the applicant fails to qualify financially for legal aid assistance at this time.

(5) In effect, the position of LAO has been that the applicants have had, and have, resort to undisclosed income/assets.

[32] There was no admissible evidence in this application that relevant individuals “complete[d] financial assessments” for LAO in order that a determination could be made as to their financial ability to assist the applicants. Letters from various persons, attached to Ms. Vuong’s submitted affidavit, not accepted by the respondent, and not under oath or subject to cross-examination, are not admissible for the truth of their contents.

WHETHER THE APPLICANTS ARE INDIGENT

The Evidence

[33] The applicants filed affidavits providing largely identical information as to their current financial circumstances including the following factual assertions:

(1) the applicants jointly retained counsel to defend the OSC charges and the criminal fraud proceeding, paying out approximately $130,000 between 2012 and 2015, with their own savings and $55,000 borrowed from family and friends – the borrowed money has not been repaid

(2) by January 2015, before the scheduled preliminary inquiry, defence counsel was removed from the record as the applicants could no longer privately retain counsel having exhausted all of their funds

(3) despite seeking employment, the applicants have been unemployed since November 14, 2013

(4) the applicants have relied only upon family members for shelter and living expenses and have no “other sources of income” that could cover their legal fees for the criminal trial

(5) family members are in no position at this time to provide additional funding to assist in retaining counsel

(6) as to banking information:

I had one bank account at the Bank of Montreal. I provided evidence to Legal Aid Ontario as part of my application that the account had been closed in December 2015, after a period of inactivity between October 19, 2015 to December 21, 2015. … that account is closed.

(7) a December 10, 2015 Consent was provided to LAO to inspect records held by anyone relating to any bank accounts or other assets “own[ed] alone or jointly with other persons”.

[34] The applicants wish to retain Ms. Lam to represent them at trial but maintain that they are financially unable to do so privately and have no recourse to legal aid.

[35] Ms. Vuong testified that there were two segments to the Systematech business – software development, and, trading investors’ monies. This trading was without the registration required by the Securities Act. Profits made from trading beyond what was paid out to clients were reinvested in the software side of the business.

[36] Under cross-examination, Ms. Vuong was unable to say what Systematech’s annual earnings were in the time period 2007 to 2011. She could not approximate the profits earned. The witness responded that these details were all disclosed to the OSC and would be known to the PRPS. Ms. Vuong further stated that the OSC had done a forensic accounting report during its investigation.

[37] Mr. Quach described the Systematech business as the creation of proprietary software, and, unlicensed stock and option trading. According to the witness, the company has no assets and is no longer in operation.

[38] Ms. Vuong testified that in some years Systematech made profits while losses were sustained in other years. In some years, the applicants drew salaries in the range of $60,000 to $70,000. The March 16, 2016 LAO appeal reasons note that while Ms. Vuong was working in the industry for 10 to 15 years, “her annual income exceeded $200,000”.

[39] Cross-examination of the applicants upon their affidavits explored other financial circumstances either not disclosed, or largely undisclosed, in their affidavit material.

[40] The applicants jointly owned and operated Vectorspace Game Studios Inc. (Vectorspace), a company incorporated in 2012. Ms. Vuong described this entity as a software company holding intellectual property, a source code, for the applicants’ on-line poker system. Mr. Quach testified that this new venture was set up to take away a share of the PokerStars’ share of the on-line gaming market. According to the witness, the applicants worked with potential partners for a collaboration to operate this business. Mr. Quach stated that the company’s shares are now valueless.

[41] During cross-examination, Ms. Vuong was confronted with a Declaration of Trust (Exhibit #4) dated February 3, 2012 relating to a BDC assignment of first mortgage, executed by her on behalf of Vectorspace and signed by a solicitor on behalf of the trustee (Rattan Gupta), which stated in part:

I hereby confirm that I hold the unregistered assignment of the above reference mortgage as currently engrossed in the name of Rattan (Ray) Gupta in my file for the sole and exclusive benefit of Vectorspace Game Studios Inc. as security for the sum of $850,000 CAD advanced by Vectorspace Game Studios Inc. to the said Rattan Gupta in order to purchase the said first mortgage interest as aforesaid. I further confirm as solicitor for the said Rattan Gupta that I will not accept directions as to registration or further assignment of the said first mortgage without the authority and written consent of Vectorspace Game Studios Inc.

[42] While saying that “it was just a document given to me”, Ms. Vuong agreed that the import of the document was that $850,000 was owed to her and that she took security for the outstanding debt. She informed the court that she has not realized on the mortgage. The witness variously stated that it was “never registered” and there is a “pending statement of claim”. Ms. Vuong claimed that she has taken no steps to act upon the assignment as she has no resources to hire counsel. Mr. Quach was unable to explain the document beyond saying that his wife handled “that end of the business”.

[43] Crown counsel questioned Ms. Vuong as to what she knew about an entity named Gemini Capital (Gemini). The witness acknowledged that this was a company she set up in Bulgaria with Ahmad Abdalla, a resident of Toronto and an investor with Systematech. Ms. Vuong informed the court that, because on-line gaming was illegal in Canada and in the U.S.A., Gemini Capital was a holding company registered off-shore to obtain a gaming licence. Ms. Vuong testified that she held “the software rights to it”. Asked about start-up money, Ms. Vuong answered that Abdalla and her each invested $40,000 in the venture. Cross-examined further as to the source of her share, after an obvious pause, the witness claimed that Abdalla advanced her share.

[44] The witness was pressed further in cross-examination by reference to two documents relating to Gemini – Minutes of Constituent Assembly of Shareholders … (Exhibit #5) and Articles of Association of Joint Stock Company, Gemini Capital … (Exhibit #6), neither of which made any reference to gaming or a gaming licence or to intellectual property, while each contained only this recital as to the corporation’s “scope of activity”:

1.3. Scope of activity: investments in securities, real estates or other financial assets, consultancy in the sphere of privatization, consultancy related to preparation of business plans, memorandums or prospectus for public emissions of securities, consultancy related to managing emissions of securities, consultancy related to managing funds or any other activity which is not forbidden by law

[45] Ms. Vuong continued to maintain that Gemini solely related to on-line gaming. She testified that the company currently has no money or assets and is not in operation. When questioned, Mr. Quach was of little assistance in shedding light upon Gemini’s operations.

[46] Crown counsel produced to Ms. Vuong documents relating to Gemini’s bank account with the TBI Bank in Sophia, Bulgaria. One of these items was a TBI Bank Foreign Currency Transfer Form signed by April Vuong in August 2012 on behalf of Gemini for the transfer of 22 million Euros with Gemini described as the “Beneficiary” of the transfer (Exhibit #7, p. 6). Ms. Vuong’s explanation of the document was that it related to negotiation “with a client” that fell through without the deal being completed. The witness could not identify what document she forwarded to the TBI Bank with a FedEx International Air Waybill, dated August 14, 2012, apparently related to this currency transfer (Exhibit #7, pp. 4-7).

[47] Ms. Vuong signed other TBI Bank banking documents on behalf of Gemini as revealed in Exhibit #7, pp. 9, 17.

[48] Asked whether there was any documentation submitted in this application recording the current status of Gemini’s TBI Bank account, Ms. Vuong replied that there was not and that this was “a complete oversight”.

[49] Mr. Quach was cross-examined about a $5,000 payment to him from Gemini’s TBI Bank account to his Bank of Montreal account #8011-746 at the 7880 Keele St., Toronto branch. The TBI Bank Foreign Currency Transfer Form (Exhibit #7, p. 8), signed by April Vuong, describes the payment as for “Consulting Fees” (Exhibit #7, p. 8) Mr. Quach testified that the monies were received a long time ago. The witness was of little assistance in providing precise details of the reason for the pay-out.

[50] In cross-examination, Mr. Sinnadurai produced a document to Ms. Vuong describing it as an item seized from her diningroom table during the execution of a PRPS search warrant in 2013. The witness recognized the paper, describing it as relating to her “personal” banking account (Hamra Branch) in Lebanon (Exhibit #8). The witness also related this bank account to the need to obtain a gaming licence “in each jurisdiction”. Mr. Abdalla requested that she open an account “for the business”. Although the witness believes that she had account statements and an e-mail stating that this bank account was closed, they were seized in the OSC proceeding and not reproduced in this application.

[51] Ms. Vuong testified that all bank accounts in which she had an interest personally or through a corporation, which she agreed numbered in excess of twenty, have been closed down and are inactive. Her limited disclosure in this application of her banking history was because she was of the view that she need only disclose “recent” account information and not information back to the time of the “OSC arrangements” – she “assumed” the additional information was available to the PRPS.

[52] In re-examination, Ms. Vuong identified a copy of her November 13, 2013 affidavit (Exhibit #10) filed with the OSC in which she deposed that she owned $28,000 worth of jewellery as well as a BMW X5 with an approximate value of $15,000, and jointly with her husband a 2009 Mercedes Benz C63 valued at $35,000. The affiant stated that the equity in the two vehicles was encumbered “by financing agreements and or liens” placed by “one or more investors”.

[53] In his oral evidence, Mr. Quach stated that their “leased” Porsche 911 was repossessed in the fall of 2013. This is inconsistent with para. 12 of his November 13, 2013 affidavit (Exhibit #13) filed with the OSC in which he deposed that he owned a 911 Porsche Turbo valued at $130,000. In that affidavit, at para. 11, Mr. Quach also recorded that he owned a watch valued at $6,000. On December 14, 2015, one of the Systematech investors (J. Pellegrino) testified at the preliminary inquiry as to Ms. Vuong’s representations to him inducing him to invest which included:

… she [was] bragging about her new Porsche Turbo that she had just bought. And I asked her if she bought it, or leased it. She says, “No, I buy all my cars”.

[54] At para. 8 of the November 2013 affidavit, Ms. Vuong deposed that:

I hold on my own or jointly with my [husband] the following bank accounts, all of which have a balance of less than $3,000 and most of which have a balance of less than $100:

i. Sole Owner

Institution	Account No.	Jurisdiction	Status
(a) Bank of China	18003187	Ontario	Closed
(b) Bank of Montreal	0353 3994-013	Ontario	Balance less than $3,000
(c) Bank of Montreal (USD)	0353 4798-136	Ontario	Balance less than $3,000
(d) TBI	BG69-WEBK-9310-1000-1936-00	Sofia, Bulgaria	Balance less than $3,000
(e) Lebanese Swiss Bank SAL	N/A	Beirut, Lebanon	Balance less than $3,000
(f) TBI Gemini Capital Management	A/C No. BG85-WEBK-9310-1000-1937-00	Sofia, Bulgaria	Balance less than $3,000

ii. Joint Owner

Institution	Account Name and No.	Jurisdiction	Status
(a) Bank of China	Systematech Solutions Inc. A/C No. 18003181	Ontario	Closed
(b) Bank of Montreal	Vectorspace Game Studios Inc. A/C No. 0353 1998-045	Ontario	Balance less than $3,000
(c) Bank of Montreal (USD)	Vectorspace Game Studios Inc. A/C No. 0353 4798-005	Ontario	Balance less than $3,000
(d) Bank of Montreal	2314026 Ontario Ltd. A/C No. 0353 1998-061	Ontario	Balance less than $3,000
(e) Bank of Montreal (USD)	2314026 Ontario Ltd. A/C No. 0353 4798-0913	Ontario	Balance less than $3,000

[55] Paragraph 8 of Mr. Quach’s November 2013 affidavit (Exhibit #13) filed with the OSC also disclosed some banking information. Mr. Quach testified that he owns no shares, bonds or other assets personally or through a company in or outside of Canada.

[56] The witness was questioned as to the factual assertion at para. 21 of his September 15, 2016 affidavit stating, “I had one bank account at the Bank of Montreal”. In cross-examination, Crown counsel presented the witness a PRPS-created spreadsheet (Exhibit #15) relating to 50 known bank and brokerage accounts relating to him, his wife and corporate entities associated to them. The spreadsheet, based upon documents in the possession of the PRPS, identifies 4 BMO accounts in Mr. Quach’s name, 3 in the name of Vectorspace, and 2 for 2314026 Ont. Ltd. with no verification that the accounts have been closed.

[57] Exhibit #15 identifies investment or brokerage accounts associated to Mr. Quach or to Ms. Vuong in Ontario, Quebec, and Connecticut.

[58] Under the questioning about the accounts in the spreadsheet, Mr. Quach provided a variety of responses including:

(1) the spreadsheet was inaccurate in some respects and the police appeared to be engaged in “cherry picking”

(2) the document contained “a lot of old stuff disclosed to the OSC”

(3) the OSC did forensics, outsourced to Deloitte, and the Crown knows about this

(4) the details relating to these accounts are “all in Crown disclosure”

(5) the OSC cease trade orders and the outstanding criminal fraud proceeding has prevented the witness from accessing current information about the applicants’ accounts

(6) it is “assume[d]” that the accounts were “auto-closed” for inactivity, exhaustion of funds on account of bank charges, or have only a minimal balance remaining.

[59] A 2015 banking statement for Mr. Quach’s BMO Account #8011-746 (Exhibit #11), and a covering letter, confirmed that, as of October 27, 2016, the account had a zero balance and Mr. Quach did not have “an account held at Bank of Montreal”. The 2015 annual statement for this account records many debit card purchases, a $500 “Credit” (Jan. 24/15), a $2000 “Transfer” deposit (May 22/15), about $1300 in ABM cash withdrawals, and 3 wire transfer deposits from a law firm totalling $7,367.54 (May 27, July 7 and Oct. 29/15).

[60] In his evidence, Mr. Quach agreed that he also has an account at the National Bank of Canada (Account #23-164-04) with a balance as of February 2013 in the amount of $1,329.64. This account was not disclosed in this proceeding or at para. 8 of Mr. Quach’s November 13, 2013 affidavit (Exhibit #13) filed with the OSC where he purported to list his current bank accounts. The witness informed the court that he has not logged in to check the current balance of this account. He “assumed” it is closed without any funds remaining.

Arguments

[61] On behalf of the applicants, Ms. Lam submitted that while her clients had not disclosed all of their bank and brokerage accounts in this application, or the “end story” of those accounts, in the sense of current balance statements, there was no intent to mislead the court.

[62] It was submitted that the applicants viewed a Rowbotham application as essentially an extension of the legal aid process. Also, based on this perception of interconnectness, the applicants believed that the OSC and the Crown had all of this relevant information. It was further believed that only very “recent” information was required respecting their assets.

[63] Ms. Lam submitted that the applicants testified credibly as to their present financial circumstances – a state of impecuniosity in which they are unemployed and subsist entirely dependent upon limited family assistance and without assets of their own of any value. As is evident from the applicants’ November 2013 affidavits filed with the OSC, the applicants have been destitute for some years.

[64] In terms of tracing the millions of investor dollars which passed through accounts associated to the applicants, and the disposition of proceeds of formerly-held assets such as the Porsche 911, counsel stated her belief that these funds went to pay some of the Systematech investors in an effort to make them whole.

[65] On behalf of the respondent, Mr. Sinnadurai advanced a two-pronged attack upon the sufficiency of proof of indigency.

[66] First, the record submitted by the applicants failed to present a full and credible picture of the applicants’ net worth or access to resources. The applicants engaged in incomplete and selective disclosure as to the number of their bank and brokerage accounts, the current balances of such accounts, as well as their dealings in corporate ventures apart from Systematech. For example, the court was told nothing of Vectorspace or Gemini. One BMO bank account only was disclosed with only a 2-month statement filed respecting activity in that account. The court cannot be asked to rely upon bald assertions of impecuniosity without objective, independent verification.

[67] The second and related argument of the respondent is that the record before the court, following cross-examination of the applicants, suggests that Ms. Vuong and Mr. Quach likely have access to other financial resources. For example, it was submitted that Ms. Vuong’s explanation relating to Exhibit #4, the $850,000 asset of Gemini, was not credible – no more credible than the evidence presented relating to the applicants’ domestic accounts, the TBI Bank or the other foreign bank accounts.

Governing Principles

[68] The conclusion of non-eligibility reached by LAO is relevant, but not determinative, of the financial need issue. Accordingly, this court is not engaged in reviewing the LAO decision: Rushlow, at paras. 18, 25; Lubin, at para. 9; R. v. Adams, 2016 ONCA 413, at para. 28; R. v. Mahmood, 2015 ONCA 442, at para. 36.

[69] In R. v. Tang, [2011] O.J. No. 6694 (S.C.J.), at paras. 5 to 7, Nordheimer J. observed:

5 There are three criteria that an accused person must satisfy in order to obtain a Rowbotham order. They are:

(i) the accused person must have been refused legal aid;

(ii) the accused person must lack the means to employ counsel, and;

(iii) representation for the accused person must be essential to a fair trial.

6 As part of the first criterion, the applicant must establish that he has not been refused legal aid as a result of anything that he has done or failed to do. In R. v. Montpellier, 2002 34635 (ON SC), [2002] O.J. No. 4279 (S.C.J.), Gordon J. said, at para. 34:

It is my view, however, that an applicant cannot come to the Court relying upon Legal Aid refusal when his failure or inaction has been the cause thereof.

7 The failure of Mr. Tang to be open and transparent regarding his resources and sources of funds underlies the refusal of Legal Aid Ontario to provide him with a certificate. It is mirrored in the application that is before me. That situation is entirely of Mr. Tang's own making. He cannot rely on his failure to be upfront regarding such matters to justify the fact that he has been refused legal aid. Consequently, Mr. Tang does not satisfy the first criterion.

[70] While I have real reservations as to whether the applicants have satisfied the first prong of the test relating to full and candid disclosure in the exhaustion of all reasonable opportunities for legal aid assistance, given that the respondent is prepared to accept that the applicants’ application should not be denied on this basis, I turn to the remaining criteria beginning with the issue of the applicants’ resources to employ counsel.

[71] In R. v. Woods, 2016 ONSC 2374, at para. 15, Wein J. stated:

To prove indigence, the Applicant must prove that his financial position is such that, after the date that he could reasonably have expected that he would require counsel, even after making reasonable sacrifices and efforts, he would be unable to retain competent counsel.

[72] As a general rule, an applicant for government-funded counsel must be “clear and transparent in disclosing his [or her] financial circumstances”: R. v. Staples, 2016 ONCA 362, at para. 4. At para. 40, the court stated, in respect of a s. 684(1) Criminal Code application, in words apposite here:

To obtain the exceptional relief of government funded counsel, the Applicant must satisfy the court that he has exhausted all other means of paying for counsel. He must also be clear and transparent in disclosing his financial affairs.

(emphasis added)

[73] In R. v. Tang, (Ont. C.A.), at para. 12, the court stated:

The factual findings of Nordheimer J. are fully supported on the record before him. In light of those findings, and particularly the finding that the appellant chose not to make full and accurate disclosure of the resources available to him, Nordheimer J. had no option but to dismiss the Rowbotham application. We agree with his disposition.

(emphasis added)

[74] An applicant for government-funded counsel “must provide detailed financial evidence of his or her financial circumstances, which includes supporting evidence”: R. v. Crichton, 2015 BCCA 138, at para. 49 (leave to appeal refused [2015] S.C.C.A. No. 432); R. v. Drury, 2000 MBCA 100, at para. 44 (leave to appeal refused [2000] S.C.C.A. No. 619) (problem of affidavit with only “general financial information but without a detailed financial expense sheet”); R. v. Rowe, 2016 ONSC 6144 (SCJ), at paras. 16, 25, 29-30 (“applicant ... must provide extensive financial information to lend support to their application”; “the applicant is under an obligation to provide supporting documentation verifying the information contained in his affidavit”; failure here to provide bank documents to explain transfer of funds in accounts); Ontario v. Zreik, 2015 ONSC 6680, at paras. 10, 12, 16 (applicant’s financial disclosure incomplete – only “selected bank statements” filed and none for corporate bank account – “[t]here is no independent verification of facts alleged other than his selective filing”); R. v. Kizir, 2014 ONSC 1276, at para. 46 (“inquiry into the applicant’s finances must be more than cursory, and a finding on the issue should not be based merely on unsubstantiated statements of alleged facts by the accused. A significant and in-depth review of the facts is required”); R. v. Solleveld, 2011 ONSC 3045, at paras. 19, 23, 46 (absence of documentary verification through relevant documents within control of applicant).

[75] A lack of explanation, or a bald assertion, respecting the distribution of proceeds of disposed-of assets in existence at a relevant point in time, is incompatible with a transparent and credible submission of impecuniosity: R. v. Kazman, 2016 ONSC 4320, at paras. 28-29, 33-35.

[76] The granting of a Rowbotham order is premised “on the assumption that an accused is acting in good faith” and not trying to manipulate the system to his or her own advantage: R. v. Dew, 2009 MBCA 101, at para. 16.

[77] An accused person is expected to contribute to his or her legal fees by making real efforts to find employment: Crichton, at paras. 43, 49; R. v. Sheikh, 2011 ONSC 4942, at para. 70.

[78] While consideration of the necessity for a Rowbotham order focuses upon evidence relating to an applicant’s current financial means and not historical evidence (Le, at para. 22), the circumstances of dissipation of past funds or assets may be quite relevant in a particular case in assessing present financial means where an applicant has ongoing access to those proceeds. Properly inserting the word “alleged” to provide the presumption of innocence context for the present application, I note that in Adams, at paras. 21 and 32, Watt J.A. observed:

He has never provided any explanation of where the proceeds of his [alleged] fraud are currently residing.

The record is barren of any explanation of the current residence of the funds obtained from the investors that are the subject of a $5.3 million restitution order.

See also Kizir, at paras. 47-49 (venue or disposition of purchased precious metals unexplained).

[79] In some applications, the court is not provided with a detailed estimate as to the likely cost of the defence of a trial based upon a private counsel retainer (Drury, at paras. 44, 46, 52 (“There was no evidence as to the potential costs of legal counsel”)), while in other cases this material is before the court, for example, Rowe, at para. 23; R. v. Wright, Ont. S.C.J., June 28, 2013 (unreported – Central East Region Ct. File. No. 13268/13), at p. 2.

Discussion

[80] The applicants have failed to satisfy their onus of demonstrating, on balance, that they are indigent to the point of being unable to retain counsel to represent them at trial.

[81] As already observed, refusal of LAO assistance is not determinative of the application before this court. Be that as it may, with no evidence that the applicants’ relevant family members and friends (who had provided financial assistance) completed the financial assessments referred to in the March 16, 2016 LAO appeal decision, and, without the disclosure of the total funds in the applicants’ bank and brokerage accounts, LAO was not in a position to grant assistance including through the offer of a contribution agreement. The worth of the Consent filed with LAO was of course dependent upon complete disclosure to that entity of all assets and financial interests of the applicants.

[82] The applicants’ material is woefully inadequate in terms of being a complete, accurate and credible statement of their current financial circumstances. Although represented by counsel in this application, the applicants nevertheless sought to explain many of the shortcomings in their disclosure on the basis that third parties, other than the court, knew the relevant details. The court has no access to information in the hands of the OSC, the police or the prosecution office.

[83] Essentially bald assertions of a lack of income or assets, and disclosure of only 2 months of one BMO account’s activity, fall a long way short of being a sufficient and transparent record for the court to adjudicate upon the subject of indigency.

[84] The applicants claim to be unemployed. They presented no information respecting meaningful efforts to secure income, even on a part-time basis or through self-employment, for example in the software development field, in the past 3 years.

[85] No monthly operating budget was filed by the applicants. No personal or corporate tax returns or Notices of Assessment for the past five years were filed.

[86] No estimate was presented of the likely cost for Ms. Lam to conduct the fraud trial on behalf of the applicants.

[87] Apart from the conclusory or unparticularized statements of impecuniosity found in the applicants’ affidavits filed in support of a Rowbotham order, the applicants make reference to only one bank account (“I had one bank account at the Bank of Montreal”) – an unidentified BMO account – which they claim was closed as of December 2015. (Exhibit #1: Vuong affidavit, Exhibit G; Quach affidavit, Exhibit D). This limited financial disclosure raises a number of issues including:

(1) no account number is given for this “one bank account”

(2) the applicants appear to have informed LAO that this account had been closed after 2 months of inactivity ending December 21, 2015

(3) the applicants’ 2016 affidavits clearly suggest that this unidentified BMO account was jointly held as a personal account – however, neither the applicants’ November 2013 affidavits filed with the OSC (Exhibits #10, 13) nor the PRPS spreadsheet (Exhibit #15) identify any joint account holders for any non-corporate BMO accounts associated to the applicants

(4) the applicants disclosed to the OSC, 5 jointly-held corporate BMO bank accounts and 2 personal BMO accounts held by each as sole owners (Exhibit #10, para. 8; Exhibit #13, para. 8), while the PRPS spreadsheet (Exhibit #15) reveals 11 BMO bank account numbers associated to the applicants and Vectorspace and 2314026 Ont. Ltd.

(5) in cross-examination, Mr. Quach identified his bank statement for BMO account #2483-8011-746, an account (Exhibit #11) opened in January of 2009 (see Exhibit #15, p. 2) and identified in his November 2013 affidavit (Exhibit #13, para. 8) as solely his account

(6) the “Account History” filed by the applicants, said to relate to the “one … account” referred to in their September 2016 affidavits, states “No items on file between 19 Oct 2015 and 21 Dec 2015” – accordingly this account must not be the account referred to in Exhibit #11 for BMO Account #2483-8011-746 in Mr. Quach’s name as that account statement records 16 transactions October to December 2015

(7) the current application contains no explanation by Mr. Quach relating to the nearly $10,000 in deposits made to BMO Account #2483-8011-746 during the year 2015

(8) although a BMO letter dated October 27, 2016 (Exhibit #11) states that Mr. Quach does not have an account at BMO, this does not address the BMO accounts in Ms. Vuong’s name or those accounts associated to the applicants’ corporations

(9) there is no complete documentary confirmation of the status of the applicants’ approximately 50 bank and brokerage accounts, identified in Exhibit #15, personal and corporate, domestic or foreign (Bulgaria, United States, Lebanon) - whether closed or if not, the remaining balances.

[88] Not only is it not possible to identify what single closed BMO account the applicants are referring to in their 2016 affidavits, but the filed application material, such as it is, in light of the cross-examination of the applicants conducted in this application, shouts out selected disclosure only.

[89] The bank and brokerage accounts associated to the applicants are not frozen or restrained in any fashion and the OSC’s cease and desist orders are irrelevant. The accounts are under the control of the applicants.

[90] The applicants made no disclosure to this court respecting Vectorspace and Gemini. These entities were owned and operated by the applicants as of 2012. In their November 2013 affidavits, filed with the OSC after they had been charged with fraud, the applicants stated that they were self-employed with Vectorspace (Exhibit #10, para. 4; Exhibit #13, para. 4). In their cross-examination testimony in this application, the applicants sought to explain, unconvincingly in content and presentation, that these entities were entirely irrelevant to their current financial circumstances.

[91] Ms. Vuong stumbled and struggled in her testimonial effort to explain the circumstances of the Exhibit #4 security for the sum of $850,000 of Vectorspace funds. The asset was not disclosed in the applicants’ disclosure affidavits filed with the OSC in 2013. Her evidence linking Gemini to online gaming lacked credibility, especially given Gemini’s articles of incorporation describing a scope of activity, silent upon gaming, but not dissimilar to Systematech’s trading operations.

[92] No detailed account was provided respecting the proceeds of disposed of assets, for example the Porsche vehicle valued at $130,000 in 2013 which Mr. Quach attempted to describe in this application as a leased vehicle having told the OSC he owned this auto.

[93] The only reasonable inference which can be drawn from the existing record is that the applicants have chosen not to make full and accurate disclosure of their real financial circumstances. It would be unreasonable to conclude that the applicants are indigent.

FAIR TRIAL CONSIDERATIONS

The Evidence

[94] Ms. Vuong’s affidavit filed in this application deposes to the following:

(1) she intends to plead not guilty to the fraud charge

(2) the disclosure is voluminous

(3) given her “lack of legal training”, she will be unable “to review all of the evidence” or “prepare a defence”

(4) she conceded committal for trial after the second day of the preliminary inquiry, scheduled to last 7 days, because she “did not feel capable of contesting the Crown’s case” against her – she was “not attuned to the procedures” that governed the inquiry and did “not understand the legal issues in the case”

(5) she is not capable of dealing with a statement voluntariness voir dire, a prior disreputable conduct evidence application to be brought by the prosecution, or a hearsay evidence application relating to the applicants’ banking records

(6) the prosecution may disclose a forensic accountant expert report in the next few weeks which may require her to contest the report

(7) solicitor-client privilege issues may arise at trial

(8) she “should bring” an “application relating to abuse of process” and s. 7 of the Charter

(9) she “should bring” a s. 11(b) Charter application.

[95] Mr. Quach’s affidavit presents an identical position.

[96] Testifying in this application, Ms. Vuong stated that she had a B.A. in commerce and entrepreneurial management and completed the Canadian Securities Course. Prior to 2001, she was employed with Manulife Financial. From March 2001 to 2004, she was a Software Quality Technical Project Leader/Manager at Mackenzie Financial Corporation. She held a quality assurance position at RBC Capital Markets until 2008 before becoming self-employed in joint ventures with her husband.

[97] After spending a couple of years at the University of Waterloo, Mr. Quach entered the workforce and, from about 1992 to 2007, graduated from work as a junior programmer to a systems analyst and senior programmer, finally becoming a software architect and consultant. He was employed with various companies including TD Bank and BMO Financial.

[98] In her evidence here, Ms. Vuong described the Crown brief received by way of disclosure as exceeding 60,000 pages. She considers the fraud trial to be a very serious matter. In the applicant’s view, there is “a lot of duplication” with the OSC proceedings.

[99] Under cross-examination, Mr. Quach testified that while the fraud allegation of a Ponzi scheme may look simple on the surface, the financial transactions are numerous and complex. In the witness’ words, “We don’t know accounting”.

[100] In Mr. Quach’s opinion, the OSC matter is “identical” to the fraud prosecution.

[101] The court file contains two volumes of transcript relating to the evidence heard at the preliminary inquiry on December 14 and 15, 2015. At the outset of the hearing, the applicants acknowledged that they had previously been provided by Justice Monahan of the Ontario Court of Justice (OCJ) written material relating to the nature of the inquiry. The preliminary inquiry judge, Justice Kastner, carefully assisted the applicants throughout the preliminary inquiry with matters of procedure and evidence.

[102] In the hearing before her, Justice Kastner confirmed that the applicants had the disclosure material from the prosecution. At the outset of the hearing, Crown counsel presented a witness list and informed the court that, as a result of a request by Ms. Vuong the week before, she was assisting in subpoenaing witnesses as requested by the defence. During a discussion of preliminary procedural matters, when Justice Kastner was discussing such topics as the order of questioners and avoidance of repetitive questioning, Mr. Quach stated:

We’re prepared in a way that we have a main speaker in the questions.

Ms. Vuong was the applicants’ principal examiner of the witnesses.

[103] The preliminary inquiry transcript reveals that Ms. Vuong was not shy about asking Justice Kastner for assistance.

[104] Josefh Pellegrino testified on December 14 respecting investments Ms. Vuong was purportedly making on his behalf on the Forex Currency Exchange. The prosecution led the complainant through his in-chief evidence which amounts to 51 pages of transcript including the introduction of 17 exhibits. Ms. Vuong cross-examined the witness for about 18 pages of transcript. Crown counsel’s examination in-chief on December 14 and 15 of a second complainant, Drew Hauser, consumed 52 pages of transcript with the introduction of an additional 13 exhibits. Ms. Vuong’s cross-examination amounts to 20 pages of transcript.

[105] Review of Ms. Vuong’s cross-examinations reveals that she was a confident questioner who did not flounder during her examinations. At the point when the applicants elected to cut the preliminary inquiry short, they made no complaint that they did not understand the evidence, the nature of the proceeding or the relevant issues. Ms. Vuong informed Justice Kastner:

I’m just contemplating that being self-represented may not be the - - - to the best interest of Your Honour’s time as well as the Crown … Whether I’m using proper or sufficient time to question the witness.

After a brief consultation with duty counsel, and no pressure whatsoever from the court, the applicants conceded committal.

Arguments

[106] Ms. Lam submitted that despite the applicants’ education level, and the certain assistance they would receive from the trial judge directed to them receiving a fair trial, this would be insufficient in the present case to ensure that the applicants will be in a position to adequately defend the case to meet.

[107] The criminal charge is serious. The disclosure material is voluminous. The prosecution is seeking a penitentiary sentence should the applicants be convicted. The evidence involves the complexity of financial transactions and the flow of funds. Expertise in cross-examination will be necessary for the questioning of complainants and any forensic accountant called by the Crown.

[108] Ms. Lam noted that the applicants felt overwhelmed in their effort to represent themselves at the preliminary inquiry.

[109] The applicants are without the resources to retain an expert to contradict the prosecution’s forensic accounting evidence.

[110] Finally, it is said that the pre-trial motions involve issues beyond the abilities of persons without legal training.

[111] Mr. Sinnadurai submitted that self-representation in this fraud trial presents no serious risk to the applicants’ s. 7 Charter right to a fair trial. Counsel noted a number of fraud cases in which the courts have denied a Rowbotham order. It was submitted that the role of a trial judge in ensuring a fair trial is an important factor.

[112] Crown counsel acknowledged that the fraud charge is a serious allegation and that the disclosure is of a significant size. The trial will last more than a few days. This said, it was submitted that the allegation of a Ponzi scheme is not overly complex and that a limited number of complainants only will be called to testify.

[113] Mr. Sinnadurai characterized the applicants as educated business persons who created and received relevant documents, who dealt directly with the complainants, and who owned the relevant bank and brokerage accounts. As such, it is said that the applicants are more than able to present a meaningful defence.

[114] As to the pre-trial motions, there is no material, nor any particularized basis, upon which to determine that the motions have any potential merit or would be beyond the applicants’ abilities to present to the court.

Governing Principles

[115] In considering whether it is essential for a fair trial that counsel be appointed to legally represent an accused person, an application judge will “take into account the prosecution’s duty to make full disclosure and the trial judge’s obligation to assist the unrepresented accused”: Rushlow, at para. 21. “Representation by a lawyer is not a pre-requisite for a fair trial”: R. v. Rain (1998), 1998 ABCA 315, 130 C.C.C. (3d) 167 (Alta. C.A.), at para. 36 (leave to appeal refused [1998] S.C.C.A. 375).

[116] The issue as to whether a trial will probably be unfair, in contravention of ss. 7 and 11(d) of the Charter, is necessarily a prospective evaluation. There is no closed list of factors which might become relevant depending upon the facts of a particular case. That said, our jurisprudence highlights factors which have attracted consideration including the following:

(1) the seriousness of the charge(s): Rushlow, at paras. 19, 27

(2) the length and complexity of the proceedings including evidentiary, procedural and substantive law applying to the case: Rushlow, at paras. 19, 26; Solleveld, at para. 40 (“[t]he length of the trial is not itself an indicator of complexity”)

(3) the volume of disclosure: Kazman, at para. 42 (the “fact that the materials are voluminous does not, standing alone, necessarily imbue the trial with complexity in the sense in which that term is understood for the purposes” of a Rowbotham application)

(4) education level of applicant(s): Rushlow, at paras. 20, 26 (grade 11 education; no legal training); Kazman, at para. 49 (“the applicant is an intelligent man”); R. v. Baron, 2014 ONSC 2660, at para. 20 (applicant “is clearly an articulate, educated businessman”); Williams, at para. 13 (applicant “is intelligent and well-educated” with a university degree)

(5) employment background: Rushlow, at para. 20; Adams, at paras. 21-22 (applicant “incorporated companies, ran or directed the running of at least two businesses…”); R. v. Angelis, 2012 ONSC 5833, at para. 5 (applicant worked in the accounting field for 15 years)

(6) ability to read: Rushlow, at para. 20

(7) facility with language of the proceedings: Rushlow, at para. 20

(8) the aptitude of the applicant in cross-examining at the preliminary inquiry: Angelis, at para. 5

(9) the potential likelihood of imprisonment: Rushlow, at paras. 20, 24, 27.

[117] Turning to the complexity of the case, a single count of fraud over $5000, in the Kazman decision, at paras. 40-41, the court stated:

40 The Crown points to numerous far more complicated frauds where accused persons charged were held to have been able to adequately defend themselves; see Williams, at paras. 12 and 13.

41 Since, as noted above, Mr. Kazman is alleged to be, and does not deny being, one of the persons who initially incorporated the companies that received the loans at issue, the dictum of Whitten J. in Solleved, at para. 30 is apt:

The complexity lies not in any legal issues but in the nature of the solicitation and the mechanics of the investment. One must realize that these enterprises were not just there, they were created by the accused persons. Surely the creators and managers of such an enterprise know the intricate details more so than a lawyer or layperson would.

[118] Indeed, in a number of recent cases, the courts have determined, on their own facts, that an accused person may be quite equal to the task of defending fraud charges: see for example – Tang (multi-million dollar fraud arising out of an investment scheme operated by accused); Kazman (multiple fraud counts); Zreik ($1.7 million fraud); Angelis ($1.3 million fraud); Williams ($3 million fraud; 37 charges); Solleveld (6-mon. trial of multiple fraud charges).

Discussion

[119] Depending upon case-specific circumstances, a self-represented accused may be capable of defending him or herself at a level consistent with the conduct of a fair trial in terms of the examination of witnesses, the presentation of evidence and the development of relevant arguments. The defence of the criminal allegation may not be as professionally competent as one advanced by a lawyer, but that is not the test as to whether the court should order that state-funded counsel is necessary. Is it essential for a fair trial that the accused be represented by counsel?

[120] On the record here, the applicants have not, on balance, established that the fraud charge cannot be fairly defended should they proceed to trial as self-represented litigants.

[121] While, consistent with principles of neutrality and the realities of the adversarial paradigm, there are limits to the assistance a trial judge can reasonably provide, one should not underestimate the role of the court in ensuring for a self-represented accused that a fair trial is conducted in every respect.

[122] The applicants are highly educated, mature and articulate individuals. Their employment history, including business ventures of their own, make them no strangers to finance and accounting. The applicants have incorporated and operated companies, negotiated for financing including on an international scale, maintained multiple bank and brokerage accounts, and traded millions of dollars on behalf of investors.

[123] While the fraud allegation is unarguably serious, the disclosure extensive, and jeopardy for lengthy imprisonment on conviction a reality, these factors do not, having regard to the totality of circumstances, meaningfully contribute to a necessity for government-funded counsel.

[124] The prosecution is presenting a 12-to-15-witness case with a representative number of complainants only. The approximately nine complainants to be called are not strangers to the applicants and their Systematech investment transactions are well known to Ms. Vuong and Mr. Quach. The prosecution theory of a Ponzi scheme is a straightforward allegation of dishonest deprivation. The defence of lack of criminal design or intent in a context of honest dealings and unanticipated investment losses is equally unambiguous.

[125] It is not apparent how counsel navigating the disclosure materials on behalf of the applicants would amount to a meaningfully significant advantage to the defence. Represented by counsel, the applicants had disclosure of the OSC regulatory prosecution materials including the forensic accounting report prepared for the OSC and negotiated a Settlement with the Commission while represented by counsel. The applicants maintain that the fraud prosecution is essentially identical to the OSC scrutiny of their trading transactions. The applicants have received the prosecution disclosure material relating to the PRPS investigation and during their combined 76 months of claimed unemployment have undoubtedly become quite conversant with its contents. The stripped-down approach of the prosecution, involving a handful of complainants, directly implicates only a part of the disclosure for trial purposes.

[126] Insofar as the documentary features of the prosecution case relating to the relevant investment transactions, such as e-mails, promissory notes, banking documents, and the like, these materials were created, sent, received, handled and known to the applicants.

[127] I do not accept the assertion that the applicants were overwhelmed at the preliminary inquiry in terms of cross-examining complainants with whom they had had business dealings, or in their understanding of the relevant issues or procedures. Fairly read, the preliminary inquiry transcripts demonstrate otherwise.

[128] Any forensic accounting expert called by the prosecution at trial will testify based upon the foundation of original documents disclosed to the applicants, many of which were undoubtedly discussed in the OSC expert report disclosed to the applicants – a report which the police and criminal prosecutor have not seen.

[129] The submitted prospect of pre-trial motions fails to raise a cogent case for the essentiality of counsel appointment.

[130] As to the admissibility of the applicants’ statements to the police, and the prosecution’s burden of establishing voluntariness beyond a reasonable doubt, this voir dire will be explained by the trial judge. The largely exculpatory statements were videotaped by the police and transcripts of these interviews will be available. There is no indication from the applicants as to any evidence-based concerns about the voluntariness of these statements.

[131] The applicants have raised the subject of abuse of process. In the absence of any clearly articulated submission by the applicants or Ms. Lam, of unfair and oppressive state misconduct, it is not even possible to determine whether there exists a threshold showing of such an application being anything beyond frivolous. The fraud trial, following upon the aborted regulatory prosecution of the OSC, does not amount to double jeopardy or actionable unfairness. There is no evidence of improper information-sharing by the OSC with the PRPS or of improper collusion between these enforcement entities. The cross-examination of PRPS Constable Jackson in this application did not suggest otherwise. As said, the PRPS does not have the OSC forensic accounting report.

[132] The assertion of the applicants that they wish to bring a s. 11(b) Charter application, but are materially impeded from doing so without the benefit of counsel to argue the application and without funds to order the relevant transcripts, is unpersuasive. The anticipated completion of the applicants’ trial will be about 41 months after they are charged which is about 11 months beyond the presumptive reasonable-delay-to-trial ceiling of 30 months described in R. v. Jordan, 2016 SCC 27 for trials in a superior court of criminal jurisdiction. That said, with such matters as the applicants’ extended LAO appeals, removal of counsel of record in the OCJ, a Rowbotham application (first discussed on June 20, 2016, with an Application Record filed on September 16, 2016, and argument on November 15/16, 2016), and reported unpreparedness for trial, defence delay appears to be a very real factor in explaining time over and above the Jordan standard. In any event, the submission of unreasonable delay to trial is just that, an allegation, unsupported by any particularized record which would even constitute a threshold showing of constitutional violation.

[133] The issue of hearsay discussed at the JPTs involves no novel legal issues – for example, financial institution records are commonly admitted through the mechanism of s. 29 of the Canada Evidence Act. In terms of the disreputable conduct evidence relating to a document in material seized from the applicants’ residence, the alleged forged letter from the bank said to have exaggerated Systematech’s financial holdings, it will be for the prosecution to establish the relevance of this evidence.

CONCLUSION

[134] The application is dismissed.

[135] The applicants are ordered to appear at the Criminal Assignment Court of December 2, 2016 at 9:00 a.m. It is recommended that the justice presiding on that date provide written materials to the applicants relating to criminal trial procedure and set a schedule of appearances (including addition JPTs if so advised) related to trial preparation to include the subjects of a final prosecution witness list and order of witnesses for trial and the statement voir dire, identification of documents to be introduced by the Crown by affidavit or through specified witnesses, the nature and order of any pre-trial motions including filing dates as may be required for related materials, the subpoenaing of defence witnesses, etc.

Hill J.

DATE: November 22, 2016

CITATION: R. v. Vuong, 2016 ONSC 7277

COURT FILE: CRIMJ(P) 1348/15

DATE: 2016 11 22

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: R. v. APRIL VUONG and HAO QUACH

COUNSEL: A. Sinnadurai, for the Respondent

E. Lam, for the Respondents

JUDGMENT – ROWBOTHAM APPLICATION

Hill J.

DATE: November 22, 2016