



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2019 ONCA 919

DATE: 20191122

DOCKET: C62622

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jenny Tran

Appellant

Jenny Tran, acting in person

Kevin Rawluk, for the respondent

Heard: November 6, 2019

On appeal from the convictions entered on January 23,
    2015 and the sentence imposed on April 2, 2015 by Justice Kelly P. Wright of
    the Superior Court of Justice, with reasons reported at 2015 ONSC 534.

REASONS FOR DECISION

Introduction

[1]

After a trial that spanned more than 70 days, the appellant was
    convicted of two counts of fraud over $5000 (
Criminal Code
, R.S.C.
    1985, c. C-46, s. 380(1)(a)), two counts of fraud under $5000 (s. 380(1)(b)),
    one count of attempting to obstruct justice (s. 139(2)), one count of forgery
    (s. 366(1)(a)), and one count of causing someone to use a forged document (s.
    368(1)(b)). She was sentenced to 14 months in jail. She appeals her convictions.

[2]

The appellant commenced proceedings in this court as a self-represented
    litigant. Her appeal was eventually converted to a solicitor appeal. Counsel perfected
    the appeal and filed a 43-page factum. The appellant discharged her counsel
    shortly before the appeal was scheduled to be heard. The appellants application
    for an adjournment of the appeal hearing, and her request that
amicus

curiae
be appointed, were dismissed.

[3]

At the appellants request, a Cantonese interpreter was present in court
    for the hearing. However, as was her right, the appellant chose to make her
    submissions in English, and did so without any apparent difficulty.

[4]

After the hearing, the appeal was dismissed with reasons to follow. These
    are our reasons. We consider Ms. Trans oral submissions, and the arguments
    raised in the factum filed on her behalf.

Factual Background

[5]

The appellant held herself out as a qualified heath care provider. She
    performed and billed for services that she was not qualified to perform (i.e.,
    massage and acupuncture). The appellant billed her clients insurance companies
    for services that she never performed. She submitted false claims for some of
    her clients spouses and children who had never attended the clinic. If an
    insurance claim was denied, the appellant would often report the clients
    unpaid bills to a collection agency. She sued two of her clients for refusing
    to pay.

[6]

The Crown led the evidence of five of the appellants clients. The trial
    judge found their evidence to be compelling. The Crown also relied on the
    evidence of an insurance company employee, the Director of Professional
    Misconduct for the Ontario College of Massage Therapy, and a naturopathic
    doctor. The appellant testified in her own defence, and called two other former
    clients as witnesses. The trial judge rejected all of the appellants evidence.
    In detailed reasons, she found the appellant guilty on the seven counts set out
    above.

Grounds of Appeal


[7]

The appellant submits that the trial judge erred in refusing to grant
    her request for an adjournment of the trial after she discharged her counsel.
    The appellant had been placed in custody because she had failed to attend court
    for her trial as directed by the trial judge.

[8]

Ms. Tran relied on letters from four doctors who asserted that she was
    too ill to conduct her trial. The trial judge was not content to proceed on the
    basis of the letters alone and requested that two of the doctors testify on the
    application. Both doctors expressed concerns about Ms. Trans self-reported
    mental health concerns. The trial judge rejected their evidence. As she said,
    I find that both doctors demonstrated a complete abdication of their medical
    opinions, without hesitation and without confirmation, by adopting Ms. Trans
    self-reported illnesses. The trial judge also rejected the appellants
    evidence that she was too unwell to conduct her own trial. She found that Ms.
    Tran was malingering.

[9]

The trial judge properly exercised her discretion to refuse the adjournment
    request. The appellant had already obtained numerous adjournments as she hired
    and fired multiple lawyers. The trial judge carefully considered the
    appellants claims of mental distress, as well as her assertions that she was
    unable to present her own defence. The long and tortured history of the case
    amply justified the trial judges decision to refuse Ms. Trans request: see
R.
    v. Patel
, 2018 ONCA 541, at para. 3.

[10]

After she denied Ms. Trans adjournment request, the trial judge took
    all reasonable steps to ensure that the appellant received a fair trial. She
    explained the rules of evidence and offered to assist the appellant in framing
    her questions for the witnesses. Moreover, the trial judge appointed very
    experienced defence counsel as
amicus curiae
who effectively assisted
    the appellant throughout the trial. The trial judge allowed
amicus
counsel wide latitude, including permitting her to question the two defence
    witnesses.

[11]

This was an extremely difficult trial to conduct and keep on track. The
    trial judge did everything reasonably possible to accommodate the appellants seemingly
    endless demands. On one occasion when the appellant complained about the trial
    process, the trial judge said:

[A]s I reflect on this trial every single request you have made
    has been addressed and accommodated with the exception of more recently the
    highlighter issue and from the very distant past, the French fry and the coffee
    request. Those are the only things that I can think of that youve not been
    accommodated on.

Everyone involved in this trial has done everything they can to
    assist you in every way they can. In my view, you have been given more
    resources than any other individual I know who has been in a trial at the
    Superior Court or even the Ontario Court level.

[12]

This ground of appeal is dismissed.

[13]

The appellant argues that the trial judge erred in ordering the
    appellants detention to ensure her attendance at trial. The trial judges
    decision was well supported by the appellants previous failures to appear in
    court, which resulted in delays in the trial. Moreover, the appellant did not
    seek to review her detention order.

[14]

This ground of appeal fails.

[15]

The appellant submits that counts four through eight of the indictment are
    void for vagueness and that her convictions on these counts are unreasonable
    and not supported by the evidence. There is no merit in either claim.

[16]

The counts in question were framed in a manner that sufficiently informed
    the appellant of the nature of the allegations made against her. Moreover,
    there was a firm evidentiary basis for the trial judges findings of guilt on
    counts four through eight. The verdicts were not unreasonable.

[17]

This ground of appeal is dismissed.

[18]

Lastly, the appellant submits that the trial judge reversed the burden
    of proof. We disagree. The trial judge properly instructed herself in
    accordance with
R. v. W.(D.)
, [1991] 1 S.C.R. 742, and her reasons
    demonstrate that she properly applied these principles. Accordingly, we reject
    this ground of appeal.

Conclusion

[19]

The appeal from conviction is dismissed. The appellant originally
    appealed her sentence. However, she made no submissions on the issue and the
    sentence has long since been served. The appeal from sentence is dismissed as
    moot.

David Watt J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


