COURT FILE NO.: CRIM 1348/15
DATE: 2018 06 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
APRIL VUONG and HAO QUACH
Applicants
Mike Morris, for the Crown
Self-Represented Applicants
HEARD: June 4, 2018
reasons for Decision - ADDENDUM
Shaw J.
Introduction
[1] Following submissions heard on May 22 and 23, 2018, I released Reasons for Decision (“Decision”) dealing with the motion to stay the proceedings in this matter. For reasons given in that Decision, I declined the Applicants’ request to stay the proceedings on the basis of abuse of process.
[2] Commencing at para. 87 of my Decision, I addressed the issue of the qualification of Mr. Anthony Long, a forensic accountant employed by the Ontario Securities Commission (“OSC”), who the Crown intends to call as a witness at trial. I found that Mr. Long could be called, but would have to be qualified as an expert witness.
[3] My Decision was released on May 29, 2018. The following day, on May 30, 2018, the Court of Appeal released its decision in R. v. Ajise, 2018 ONCA 494. On May 31, 2018, I indicated to the Crown and the Applicants that I would entertain further submissions on my decision regarding the qualification of Mr. Long at trial, given the release of the Ajise decision which dealt with opinion evidence in the context of a fraud trial, which was one of the same issues that was argued before me.
[4] As noted by Coroza, J. in R. v. Browne, 2017 ONSC 5054 at para. 5, a trial judge may, prior to the conclusion of trial proceedings, reconsider, re-visit and reverse prior rulings made on a voir dire.
[5] I reverse my previous ruling regarding Mr. Anthony Long and find that he may give evidence as a fact witness for the reasons that follow.
Analysis
[6] At para. 95 of my Decision, I referred to the decision of R. v. Khan, 2014 ONSC 5664 and at para. 96 of my Decision, I noted that I was not provided with any authority for the proposition that in a fraud trial, a forensic accountant can be called as a fact witness. In addition to Ajise, I have also now considered R. v. Tang, 2015 ONCA 470, leave to appeal dismissed [2015] S.C.C.A. No 486. Both of these decisions, from the Ontario Court of Appeal, involved criminal fraud trials where the court found that an accountant’s or forensic accountant’s evidence could be led as factual, and not expert evidence. In Khan, Justice Code found that it was commonplace that such evidence be admitted as expert evidence.
[7] In Ajise, an investigator from the Canada Customs and Revenue Agency (C.C.R.A.), who was trained as a general accountant, gave evidence without being qualified as an expert. In that case, the accused was charged with fraud over $5,000. He had filed income tax returns on behalf of his clients over a number of years claiming in excess of $5 million of charitable donations.
[8] In that case, the investigator prepared a number of detailed spread-sheets summarizing information obtained from documents filed with the C.C.R.A. as well as bank documents obtained through a production order and documents seized pursuant to search warrants. During her examination-in-chief, she testified that, in her opinion, all of the donation claims were false. She was not qualified as an expert to give opinion evidence at trial. The Court of Appeal commented that the investigator’s evidence was lengthy and the supporting documents were voluminous.
[9] On appeal, the appellant argued that the trial judge erred by admitting what amounted to opinion evidence from the investigator and focused on a particular spreadsheet which made reference to “false donation claims”. That document summarized what had been claimed by way of charitable donations on the returns filed by the appellant which the investigator testified were false.
[10] In a 2-1 decision, the Court of Appeal concluded that the investigator was properly characterized as a fact witness at trial and not an expert witness. At para, 23, the Court held:
…It was entirely proper for her to explain to the jury the nature of the calculations she had made and the source data she used to compile Exhibit 12, which was an admissible demonstrative aid designed to summarize the properly admitted evidence and “to assist the jury in understanding the entire picture presented by voluminous documentary evidence”: R. v. Scheel (1979), 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 at p. 34 (Ont. C.A.); Kon Construction Ltd. v. Terranova Developments Ltd., 2015 ABCA 249, 20 Alta L.R. (6th) 85, at para. 46. As with the summaries in Scheel, the usefulness of Exhibit 12 “depended entirely…upon the acceptance by the jury of the proof of the facts upon with [it was] based”: Scheel, at p. 34. The jury was in a position to assess for itself the worth of Maraj’s explanation for her calculations as they did not rest on or draw its force from any specialized or technical skill or knowledge; see R. V. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208 , at para. 277.
[11] In her dissent, Pardu J’.s finding was that on the issue of the investigator’s opinion/findings that the charitable donation claims were false, the investigator was providing expert opinion that required a voir dire to determine its admissibility. Pardu J. did not make any findings regarding the balance of the investigator’s evidence. While Pardu, J found that the investigator’s opinion that the charitable donations were false was opinion evidence, she did not raise any issues regarding the balance of the accountant’s evidence.
[12] I have also now considered R. v. Tang. In that case, the accused was convicted after a jury trial of a multi-million dollar fraud arising out of an investment scheme. On appeal, he argued that an expert forensic accountant should not have been allowed to give expert opinion evidence because he lacked sufficient independence and impartiality as he was employed by the Ontario Securities Commission (OSC) who had investigated the accused and made various orders against him.
[13] At para. 5, the court found that with the exception of a few answers, that may have called for opinions that would require the expertise of a forensic accountant, the witness’ evidence was not opinion evidence but rather factual evidence reporting on the movement of funds in an out of various accounts that was based on banking and related documents.
[14] In addressing the issue of whether the witness could be qualified as an expert given the claims of his lack of partiality and independence, the court found that the nature of his evidence, being factual, removed any potential prejudice to the accused. Even if the witness’ involvement with the prior OSC investigation disqualified him from giving expert opinion evidence, his evidence tracing the funds remained admissible.
[15] These two decisions, of the Ontario Court of Appeal, indicate that the Court can accept non-expert factual evidence from forensic accountants in the context of a complex fraud case providing their evidence is indeed factual and does not encroach into the area of expert opinion evidence.
[16] The Applicants assert that this matter is more complex than the facts in either Ajise or Tang. There is no basis for that distinction. In Ajise, the court specifically referred to the voluminous materials that the witness reviewed. In Tang, the court referred to the matter as a multi-million dollar fraud arising from an investment scheme. Both cases would necessarily involve complexity and that was not a factor that the court considered in determining if the witness’ evidence was factual rather than opinion evidence.
[17] The Applicants raise an issue with the source of the documents that Mr. Long has reviewed. The issue can be explored by the Applicants when they cross-examine Mr. Long at trial.
[18] The Applicants also argue that Mr. Long will have the aura of expertise if he is called as a fact witness that will sway the jury unfairly. The majority in the Court of Appeal in Ajise did not express any concern with an investigative accountant from the C.C.R.A. giving evidence as a fact witness and that evidence being cloaked in expertise that would be prejudicial or unfair to the accused before a jury. Similarly, in Tang, the court did not consider that an issue when it was a forensic accountant from the OSC giving evidence as a fact witness.
[19] If necessary, throughout the trial, I can provide the jury with instructions with respect to the nature of Mr. Long’s evidence and that he is giving evidence as a fact and not an expert witness and therefore cannot provide any opinion evidence.
[20] Based on these authorities, I reverse my decision dated May 29, 2018, and find that Mr. Anthony Long may be called as a non-expert witness. He will not be permitted to proffer any opinion evidence during the trial.
L. Shaw J.
Released: June 4, 2018
COURT FILE NO.: CRIM 1348/15
DATE: 2018 06 04
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
APRIL VUONG and HAO QUACH
REASONS FOR JUDGMENT
L. Shaw J.
Released: June 4, 2018