



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tang, 2014 ONCA 632

DATE: 20140911

DOCKET: C56745

Gillese J.A.

BETWEEN

Her Majesty the Queen

Responding Party

and

Weizhen Tang

Applicant

Weizhen Tang, appearing in person

Michael Lacy, appearing as duty counsel

John Pearson, for the responding party

Heard: September 10, 2014

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

ENDORSEMENT

[1]

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

BACKGROUND IN BRIEF

[2]

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

[3]

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

[4]

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

[5]

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

[6]

When the Applicants appeal was next spoken to, duty counsel identified certain
    potential grounds of appeal in respect of both the conviction and the sentence
    appeal.  The Applicant submitted that there were additional documents that he
    needed in order to proceed with his conviction appeal.  These documents related
    to the
Rowbotham

application that he had unsuccessfully made in
    the proceedings below.  Justice Nordheimer heard the Applicants
Rowbotham

application, and dismissed it on the basis that the Applicants evidence
    with respect to his financial means to retain counsel was inconsistent and
    unsatisfactory.  Justice Nordheimer further found that the Applicant was able
    to adequately conduct his defence without the aid of counsel and that legal representation
    was not essential to a fair trial.

[7]

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

[8]

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

ANALYSIS

[9]

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

it appears desirable in the interests of justice that the
    accused should have legal assistance and where it appears that the accused has
    not sufficient means to obtain that assistance.

[10]

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

[11]

Duty
    counsel, on behalf of the Applicant, submits that there are two arguable grounds
    of appeal in respect of the conviction appeal.  The first ground relates to
    Nordheimer J.s dismissal of the Applicants
Rowbotham

application. 
    The second relates to the evidence of the Ontario Securities Commission
    investigator whose evidence at trial was admitted on the basis that he was a
    forensic accounting expert.

[12]

The
    interests of justice requirement in s. 684 begins with an inquiry into the
    merits of the appeal:  see
R. v. Johnson

[2013] O.J. No. 4851
    (C.A.), at para. 16.  Like my colleagues who have reviewed the merits of the
    conviction appeal for the purposes of bail and the previous s. 684 application,
    I do not find sufficient merit in the conviction appeal to meet the interests
    of justice requirement.  In this regard, I would highlight three points.  First,
    the Applicant testified at trial and admitted the
actus reus

of
    many of the allegations, although he denied that he had criminal intent. 
    Second, the decision on the
Rowbotham

application was a
    discretionary one and based on the articulation of the correct legal principles. 
    Third, the experts evidence related largely to the flows of money in and out
    of the Applicants accounts.  Much of this information was similar to that
    which the Applicant himself gave to the investors at a meeting.

[13]

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

[14]

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

DISPOSITION

[15]

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

E.E.
    Gillese J.A.


