



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang,
    2015 ONCA 470

DATE: 20150625

DOCKET: C56745

Doherty, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Weizhen Tang

Appellant

Weizhen Tang, appearing in person

Michael Lacy, appearing as duty counsel

John Pearson, for the respondent

Heard:  June 10, 2015

On appeal from the conviction on a charge of fraud over
    $5,000 returned by a jury presided over by Justice OMarra of the Superior
    Court of Justice, at Toronto on October 30, 2012.

ENDORSEMENT

[1]


Mr. Tang was convicted after a jury trial of a
    multi-million dollar fraud arising out of an investment scheme operated by Mr.
    Tang.  He unsuccessfully brought a

Rowbotham

application at trial.  Mr. Tang
    represented himself at trial, although
amicus
was appointed by the trial judge to assist Mr. Tang and the court.
Amicus
cross-examined several of the witnesses and made various
    submissions.

[2]

On appeal, Mr. Tang sought the appointment of
    counsel pursuant to s. 684 of the
Criminal Code
.  Counsel was appointed on the sentence appeal, but not on the
    conviction appeal.  Mr. Tang represented himself on the conviction appeal with
    the assistance of Mr. Lacy as duty counsel.  Mr. Lacy went well beyond the
    normal function of duty counsel.  The court appreciates his assistance.

[3]

Mr. Lacy made two arguments on behalf of Mr.
    Tang.  First, he submitted that Mr. Deverteuil should not have been allowed to
    give expert forensic accounting opinion evidence because he lacked sufficient
    independence and impartiality.  The investigation that led to the criminal charge
    against Mr. Tang began with an OSC investigation and various orders made by the
    OSC.  Mr. Deverteuil is a forensic accountant in the employ of the OSC and was
    involved in the OSCs investigation of the appellant.  The appellant has alleged
    throughout the proceedings that the OSC was biased against him and that the
    OSCs improper intervention in his investment business was the cause of the
    collapse of that business and substantial financial harm to Mr. Tangs
    investors and Mr. Tang.

[4]

No objection was taken to Mr. Deverteuil
    testifying at trial.
Amicus
did cross-examine
    him on his involvement in the OSC investigation.  The appellant, who cross-examined
    other witnesses, chose not to cross-examine Mr. Deverteuil.

[5]

A transcript of Mr. Deverteuils evidence was
    made available on appeal.  His evidence consists almost entirely of a tracing
    of funds in and out of various accounts.  With the exception of a few answers
    that may have called for opinions that would require the expertise of a
    forensic accountant, Mr. Deverteuils evidence was not opinion evidence, but rather
    factual evidence reporting on the movement of funds in and out of various
    accounts.  That evidence was based on various banking and related documents.  The
    appellant challenged the tracing exercise performed by Mr. Deverteuil
    suggesting that certain bank accounts controlled by Mr. Tang were not taken
    into account by Mr. Deverteuil in his tracing exercise.

[6]

Mr. Deverteuils connection with the OSC and its
    investigation of Mr. Tang did not automatically disqualify him from giving any
    and all expert forensic accounting evidence in the criminal proceeding.  We do
    not read
Burgess v. Abbott
, 2015 SCC 23 as establishing
    that kind of
per se
rule.  The determination
    of whether an experts prior connection with an investigation should disqualify
    that person from giving expert opinion evidence can only be made within the full
    context of the specific facts.  The nature of the prior investigation, the role
    played by the individual expert in that investigation, and the nature of the
    proposed expert evidence would all be important considerations in the
    determination of whether the experts prior involvement made the case was one
    of those relatively rare cases in which an experts lack of independence or
    impartiality provided a basis for holding that the expert was not competent to
    testify.  As
Burgess
indicates, in most cases,
    suggestions that an expert witness lacks independence or impartiality will go
    to the weight of the experts evidence rather than its admissibility.

[7]

In any event, the nature of Mr. Deverteuils
    evidence removes any potential prejudice to the appellant.  Even if Mr.
    Deverteuils involvement in the OSC investigation disqualified him from giving
    expert opinion evidence, his evidence tracing the funds remained admissible. 
    The few answers given by Mr. Deverteuil that slipped into the area of expert
    opinion evidence were of little, if any, consequence to the central issues.  In
    the end, Mr. Tangs guilt turned on whether he had deliberately lied to his
    investors and obtained their money as a result of those lies.  To the extent
    that Mr. Deverteuil gave any opinion evidence, it did not touch on those
    questions.  This ground of appeal cannot succeed.

[8]

Mr. Lacys second argument challenges the
    pretrial ruling of Nordheimer J. on the 
Rowbotham
 application.  He refused to order a stay of proceedings until the
    Attorney General provided the funds necessary for Mr. Tang to retain counsel
    for the trial.

[9]

In dismissing the 
Rowbotham
 motion, Nordheimer J., at para. 5, identified the three
    prerequisites to the making of the order:


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 must be essential to a fair trial.

[10]

All three criteria must be met.  We need concern
    ourselves only with the second of the three.

[11]

In determining that the appellant had failed to
    show that he lacked the means to employ counsel, Nordheimer J. said, at paras.
    78-79:

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. Tangs 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.

Similarly, because of the lack of disclosure
    coupled with the inconsistencies between Mr. Tangs claimed income and his
    current lifestyle, I am not satisfied that Mr. Tang lacks the means to employ
    counsel.  I note in this regard that earlier in these proceedings Mr. Tang
    employed counsel from time to time for assorted purposes.  He paid significant
    but varying amounts to each of these counsel, all while still laboring under
    the financial restrictions that he now claims should entitle him to state
    funded counsel.  How it was that he had funds to do so at those different times
    and why he now says that he cannot retain counsel is yet another matter that is
    unexplained.

[12]

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.

[13]

Mr. Tang also made submissions to the court. 
    His submissions related to a variety of matters, including:

·

his lack of funds to retain counsel and his
    inability to properly defend himself without counsel;

·

the absence of evidence from individuals
    knowledgeable about the kind of investment business that Mr. Tang ran;

·

the absence of financial gain by Mr. Tang;

·

the trial courts refusal to consider Mr. Tangs
    reputation as a person of good character; and

·

the catastrophic financial results caused to Mr.
    Tang and the investors by the OSC actions.

[14]

These submissions and others advanced by Mr.
    Tang repeat much of what he said in his evidence at trial and do not assist in
    determining whether there is any basis for this court to interfere with either
    the verdict at trial or the ruling on the
Rowbotham
application.  We reject those arguments.

[15]

Mr. Tang also argued that there is no evidence
    there was a crime.  In our view, there was overwhelming evidence of a massive
    fraud perpetrated by Mr. Tang.  The jury heard evidence that was reasonably
    capable of establishing that Mr. Tang, over a number of years, defrauded
    hundreds of individual investors by constantly misrepresenting numerous
    significant facets and features of the investments those people were making or
    had made through Mr. Tang and his related corporate entities.  On the Crown
s
evidence, obviously accepted by the jury, this was a
    straightforward case of fraud by deceit on a massive scale.  Clearly, we do not
    accept Mr. Tangs submission that there is no evidence there was a crime.

[16]

The conviction appeal is dismissed.

Doherty J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


