



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vuong, 2020 ONCA 516

DATE: 20200820

DOCKET: M51437 (C66253 & C66366)

Roberts J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

April Vuong and Hao Quach

Appellants (Applicants)

April Vuong and Hao Quach, acting in
    person

David Parry, appearing as duty counsel

Jeffrey Wyngaarden, for the respondent

Heard:
    August 10, 2020 by videoconference

REASONS
    FOR DECISION

[1]

On July 5, 2018, the applicants were convicted of
    defrauding numerous investors over several years of more than $5 million dollars
    in an elaborate investment scam in the nature of a Ponzi scheme. On October
    28, 2018, they were sentenced to 6 years imprisonment, less credit for strict
    bail conditions and pre-trial custody. The trial judge ordered that they pay a
    $3,567,992 fine in lieu of forfeiture.

[2]

The applicants have appealed their convictions
    and sentences, raising the following issues:

i.

The trial judge erred in dismissing their s.
    11(b)
Charter
application;

ii.

The trial judge erred by not requiring the Crowns
    forensic accountant to be qualified as an expert witness;

iii.

The pre-trial application judge erred in denying
    their
Rowbotham
application;

iv.

The verdict is unreasonable;

v.

Their sentences are demonstrably unfit.

[3]

The applicants seek the appointment of counsel
    under s. 684 of the
Criminal Code
or in the alternative partial
    funding for counsel to assist them with their appeal. They say they were
    hampered in their defence at trial because they were not represented by counsel
    and are unable to represent themselves adequately on their appeal. They claim
    they are indigent. The Crown opposes their application.

[4]

In order to succeed on their s. 684 application,
    the applicants must satisfy the following criteria:

i.

It appears desirable in the interests of justice
    that they should have legal assistance; and

ii.

It appears that they have insufficient means to
    obtain the necessary legal assistance.

See:
R. v. Adams
, 2016 ONCA
    413, at para. 24;
R. v. Staples
, 2016 ONCA 362, at paras. 31-32.

[5]

I am not persuaded that the applicants have met these
    criteria.

[6]

First, the applicants have not demonstrated that
    it is desirable in the interests of justice that they should have legal
    assistance on their appeal. That it may be better or easier if the applicants
    had counsel, however, is not the test. The question is whether the applicants
    cannot effectively present their case on an appeal without the help of a lawyer
    or the court cannot properly decide the case on appeal without assistance from
    counsel:
Adams
, at para. 26.

[7]

I am not convinced that either factor applies here.
    The issues raised on appeal are discrete and straightforward, and for the most
    part, were already canvassed at trial. The applicants do not require assistance
    to understand the myriad fraudulent transactions that they created and put into
    motion. They are intelligent, articulate and well educated. They showed facility
    with the relevant facts and legal issues at trial and on this motion. They are
    capable of advancing their claims of error before a panel of this court and the
    court does not require the assistance of counsel to determine them.

[8]

Second, the applicants have failed to provide adequate
    evidence of their financial need: they have not demonstrated that they have
    exhausted all other means of paying for counsel, including family members and the
    legal aid process, nor have they been clear and transparent in disclosing their
    financial affairs:
Staples
, at para. 40.

[9]

As Gillese J.A. noted in
Staples
, at
    para. 42, the applicants cannot satisfy [their] burden of showing that [they]
    have exhausted the legal aid process when [their] rejection was due to [their]
    own incomplete financial disclosure. That is the case here.

[10]

The applicants were denied legal aid for their
    appeal based on financial ineligibility. In its March 27, 2019 letter, the
    Provincial Appeals Office of Legal Aid Ontario explained its reasons for
    upholding the Area Committees refusal of legal aid certificate coverage:

Because both you and your spouse have been
    without income for a considerable period of time, Legal Aid presumes that you
    still have access to other financial sources. Given the nature of your charges,
    the potential case cost, and the fact that they have thus far assisted you
    financially with shelter, living expenses, and legal fees, and have acted as
    your sureties, Legal Aid considers your mother, in-laws, family, and friends as
    part of the assessment for the purposes of financial eligibility. Their income and
    assets are presumed to still be available to assist you with legal fees.

In the event that these individuals are now
    unable to assist you, they must attend for financial assessment in order to
    confirm this.
[Emphasis added.]

[11]

Although the applicants dispute their relatives
    assistance with their legal fees and their continuing ability to assist them
    financially, they do not dispute that they have provided them with financial
    assistance. More significant, there is no indication that the applicants
    family members have attended for the financial assessment proposed by Legal Aid
    to confirm that they were unable to provide financial assistance.

[12]

Moreover, notwithstanding that the applicants understand
    the necessity for making full financial disclosure, they have failed to do so. The
    bald statements of impecuniosity contained in Mr. Quachs affidavit on this
    motion do not satisfy the applicants burden. Nor do the applicants two recent
    personal bank statements or the short excerpt from the Ontario Securities
    Commissions forensic report provide the necessary support for their claim of
    indigency. As noted by Justice Hill in his reasons for dismissing the applicants
Rowbotham
application, they maintained numerous personal and corporate
    bank accounts in Canada and the world. There has been scant and inadequate production
    of these documents nor has any real effort been made to explain the disappearance
    of the millions of dollars from the fraud.

Disposition

[13]

For these reasons, the application is dismissed.

L.B.
    Roberts J.A.


