



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Vuong, 2021 ONCA 697

DATE: 20211012

DOCKET: C66253 & C66366

Hoy, Trotter and Paciocco JJ.A.

DOCKET: C66253

BETWEEN

Her Majesty the Queen

Respondent

and

April Vuong

Appellant

DOCKET: C66366

AND BETWEEN

Her Majesty the Queen

Respondent

and

Hao Quach

Appellant

April Vuong, acting in person

Hao Quach, acting in person

Jeffrey Wyngaarden, for the respondent

Heard: September 7, 2021 by video conference

On appeal from the convictions entered on July 5, 2018,
    and the sentence imposed on October 23, 2018, by Justice

M.J. Lucille Shaw of the Superior
    Court of Justice, sitting with a jury, with reasons at 2018 ONSC 6298.

Hoy J.A.:

[1]

Following a trial by judge and jury, the
    appellants, April Vuong and her spouse, Hao Quach, were convicted of fraud over
    $5000. The trial judge described it as a large-scale and sophisticated
    investment scam that took place over five years, defrauding numerous people of
    $5,175,000.

[2]

Each of the appellants was sentenced to 6 years
    imprisonment, less 11 days credit for pre-trial custody and 3 months
Downes
credit for bail conditions:
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.).

[3]

The appeals were scheduled, peremptory on the
    appellants. The appellants represented themselves on appeal.

[4]

They appeal their convictions, arguing that

1.

the application judge
[1]
erred in finding that their
    right under s. 11(b) of the
Canadian Charter of Rights and Freedoms
to be tried within a reasonable time had not been infringed and
    dismissing their application for a stay;

2.

the trial judge erred by permitting Mr. Anthony
    Long, a senior forensic accountant with the Enforcement Branch at the Ontario
    Securities Commission (OSC), to testify as a non-expert witness; and

3.

in the case of Mr. Quach only, the verdict was
    unreasonable.

[5]

The appellants also seek leave to appeal
    sentence. They argue that the sentences imposed are demonstrably unfit, that
    they should have been granted more
Downes
credit for the time spent on bail, and in the case of Mr. Quach, that the
    sentence does not reflect what he says is his lesser culpability.

[6]

For the following reasons, I would dismiss the
    appeal against conviction, grant leave to appeal sentence, but dismiss the
    appeal against sentence.

The s. 11(b) application

The application judges reasons (2017 ONSC
    3808)

[7]

The total delay between the appellants date of
    arrest (October 16, 2013) and the scheduled end of the original trial date
    (March 27, 2017) was 41.25 months.
[2]
The application judge found that 5.25 months of the total delay constituted
    defence delay and the net delay was therefore 36 months

significantly above the ceiling created by
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R.
    631, and therefore presumptively unreasonable.

[8]

The application judge then considered whether
    there were exceptional circumstances that justified the delay.

[9]

He concluded that the case was not a
    particularly complex one, and the delay was accordingly not justified on that
    basis alone:
Jordan
at para. 77.

[10]

However, the trial date had been set before
Jordan
was released on July 8, 2016. Accordingly, the application judge
    applied the principles in
R. v. Morin
, [1992]
    1 S.C.R. 771, to determine whether the pre-
Jordan
delay was not unreasonable under
Morin
and the Crown could rely on the transitional exceptional
    circumstance provided in
Jordan
.

[11]

The application judge noted that the appellants
    had not waived their s. 11(b) rights during the period of delay. Applying
Morin
, he allocated the reasons for the total delay as follows:

a.

inherent time requirements of the case- 12.75
    months

b.

other neutral time- 8 months

c.

institutional delay- 12 months

d.

Crown delay- 3.25 months

e.

defence delay- 5.25 months

[12]

The application judge was satisfied that the
    passage of time had not impaired the appellants interest in a fair trial.
    Further, the period of institutional- Crown delay was within the
Morin
guidelines, the charges were serious, and very little
    prejudice could be attributed to the delay. He attributed the stigma or stress
    brought about by disgruntled investors not to the criminal prosecution, but
    rather to the conduct the appellants admitted to the OSC in regulatory
    proceedings that pre-dated the criminal proceedings. Balancing the relevant
    factors, he concluded that the period of delay was not unreasonable, and he
    would not have granted a stay under the
Morin
framework.

[13]

Referring to the factors in
Jordan
, the application judge found as follows: the Crowns reliance on
    the previous law was reasonable; Brampton is a jurisdiction with significant
    institutional delay problems, which necessarily take time to change; and there
    was no evidence of repeated mistakes or missteps by the Crown or police.

[14]

The application judge concluded that the
    transitional exceptional circumstance under
Jordan
applied. The time the case had taken was justified based on the
    parties reasonable reliance on the previous law.

The appellants arguments

[15]

The appellants argue that the application judge
    erred in his allocation of the total delay under the
Morin
principles. If all the appellants arguments are accepted, the
    total institutional delay under
Morin
would be
    16.25 months and the Crown delay would be 6.75 months. The appellants submit
    that
,
properly allocated, the delay was unreasonable
    under
Morin
and, therefore, the transitional
    exceptional circumstance under
Jordan
did not
    apply and the proceedings should have been stayed.

[16]

They also argue that the application judge erred
    in his assessment of the prejudice to them resulting from the delay. They
    submit that he should not have related much of the prejudice they suffered to
    the OSC proceeding, and should have inferred significant prejudice to them from
    the delay:
R. v. Godin
, 2009 SCC 26, [2009]
    2 S.C.R. 3;
R. v. Villanti
, 2020 ONCA 755.

[17]

I am not persuaded that there is any basis to
    interfere with the application judges careful allocation of the total delay or
    his assessment of the prejudice attributable to the delay. The appellants make
    what I would characterize as eight submissions with respect to the allocation
    of delay. Below, I address each of those submissions. Then I address the issue
    of prejudice.

The appellants specific submissions on
    the allocations

[18]

First
, the appellants submit that the period
    from March 21, 2014 to May 1, 2014 (1.25 months) which the application judge
    allocated to inherent time requirements, finding the defence needed that time
    period to review the third wave of disclosure that the Crown provided on
    March 21, 2014, is properly allocated to Crown delay because of its piecemeal
    disclosure.

[19]

I disagree. The application judge noted that the
    charges covered a long period of time and the disclosure in this case was voluminous.
    The application judge did not find that it was unreasonable that all disclosure
    was not provided at once or that the disclosure that had been provided was not
    adequate to enable the appellants to make decisions necessary to move the case
    forward. Indeed, he properly accepted that disclosure need not be complete
    before meaningful steps are taken. In response to an argument from the
    appellants that delay should be allocated to the Crown in relation to other
    disclosure, he wrote that [t]here is no right to insist that all disclosure be
    complete before setting dates to proceed. Further, where issues with
    disclosure actually caused delay, he allocated the delay to the Crown: he
    allocated the period from May 1 to June 25, 2014 to the Crown, because in his
    view the Crown should have provided disclosure of materials in its possession
    by May 1.

[20]

Second, the appellants argue that the period from
    June 23 to July 28, 2014 (1 month), which the application judge allocated to
    other neutral time because the defence wanted additional time to renew [
sic
] disclosure and to meet with the Crown prior to setting a [judicial
    pre-trial] and then both sides wanted to adjourn for further discussions,
    should be allocated to Crown delay.

[21]

I disagree. The application judge found that
    both sides acquiesced in this delay and were content that the case proceed as
    it did. This time period is properly considered neutral delay.

[22]

Third, the appellants say the two-week period
    from September 15 to September 29, 2014 (0.5 of a month) should be considered
    Crown delay, and not other neutral time, because there was no communication
    from the Crown to set a judicial pre-trial (JPT).

[23]

I disagree. On July 28, 2014, the matter was
    adjourned to September 15, peremptory on the appellants to set a JPT on that
    date. On September 15, the appellants expressed a desire to set a Crown
    pre-trial, before a JPT. The Crown indicated that a Crown pre-trial could be
    completed in two weeks, resulting in the matter being adjourned to September
    29, 2014. While the appellants may have had some difficulty in reaching the
    Crown before September 15 to set up a Crown pre-trial, the September 15 date,
    peremptory on the appellants, was not conditional on having a Crown pre-trial
    first.

[24]

Fourth, and in addition to the above challenges
    to specific allocations, the appellants argue more generally that the total
    time (13.25 months) allocated to inherent time requirements and other neutral
    time was excessive. The appellants submit that from their arrest in mid-October
    2013 until a date was set for a JPT on November 24, 2014, the disclosure was
    piecemeal and a change in Crown counsel occurred, and changes in counsel result
    in delay.

[25]

I reject this further argument. As indicated
    above, the disclosure was voluminous. As the Crown argues, the appellants
    counsel was still reviewing prior disclosure when new disclosure was provided
    on March 21, 2014, indicating that it was the volume of the disclosure, rather
    than the pace of disclosure, that necessitated some delay. As indicated above,
    meaningful steps on the case could be taken before full disclosure.

[26]

Changes in counsel can but do not always result
    in delay:
R. v. Wookey
, 2021 ONCA 68, 154 O.R.
    (3d) 145, at para. 105. There is nothing to indicate that the change in counsel
    resulted in delay. It was the appellants counsel who asked for an adjournment on
    September 15 to schedule a Crown pre-trial.

[27]

Fifth, the appellants argue that the period from
    January 22, 2015, when the appellants counsel applied to be removed from the
    record, to February 19, 2015, which was the date the JPT was adjourned to (a
    0.75 month delay) should have been allocated to the Crown, not the defence. The
    appellants were prepared to proceed with or without counsel.

[28]

I reject this argument. While the appellants
    indicated that they were prepared to proceed to trial with or without counsel,
    they also indicated that they required some time to obtain and review the
    voluminous disclosure. The Crown was prepared to conduct the JPT that day. The
    appellants were not.

[29]

Sixth, the appellants say the one month
    allocated to inherent time requirements in the period from April 1, 2015 to the
    start of the preliminary inquiry on December 14, 2015, on the basis that the
    parties would not have been prepared to immediately start the preliminary
    inquiry, should have been allocated to institutional delay. The preliminary
    inquiry dates were set on March 31, 2015. The parties had ample time to prepare
    before the scheduled date of December 14, 2015, without the need for additional
    time.

[30]

I reject this argument. The application judge
    allocated 7.5 months of the period between April 1, 2015 and December 14, 2015
    to institutional delay. The time reasonably required to prepare should not form
    part of the institutional delay:
R. v. Tran
,
    2012 ONCA 18, 288 C.C.C. (3d) 177 at para. 32.

[31]

Seventh, the appellants take issue with the three
    months between May 25, 2016 and the scheduled trial date of February 18, 2017
    allocated to other neutral time, which they say should have been allocated to
    institutional delay. The application judge was satisfied that if the appellants
    had taken the pre-trial judge, Durno J., up on his offer to reduce the
    institutional delay, Durno J. could have found a trial date at least 3 months
    earlier. I understand the appellants to argue that the transcript does not
    reflect that Durno J. actually offered an earlier trial date.

[32]

I reject this argument. On May 24, 2016, Durno
    J. set trial dates for February 2017. He advised that he was willing to revisit
    this schedule if needed. More than four months prior, he had instructed that
    any concerns about delay should be addressed promptly. None of Durno J.s
    announcements led to any action by the appellants on the issue of delay until
    December 12, 2016, when, post-
Jordan
, they
    made a request to bring a s. 11(b) application. Their inaction belies their
    argument that the delay was unreasonable. There is no basis to interfere with
    the application judges conclusion that the appellants could have secured an
    earlier trial date.

[33]

Finally, the appellants submit the 1.25 months
    in the period between May 25, 2016 and the scheduled trial date of
    February 13, 2017 that the application judge allocated to inherent time
    requirements to prepare for trial should be regarded as institutional delay.
    The appellants did not seek additional time to prepare for trial. They had
    ample time to prepare for trial during that period.

[34]

I reject this argument. At the time, the
    appellants were without counsel. They had not yet pursued their
Rowbotham
application. One month to prepare and make oneself available for
    trial is a reasonable allocation for a case of this nature and the time
    allocated to institutional delay should not include the time that the defence
    reasonably required to prepare: see
Tran
.

The application judges assessment of
    prejudice

[35]

The application judge explained why, in the
    circumstances, he did not infer substantial prejudice to the appellants from
    the delay.

[36]

While some prejudice could be inferred, most was
    the result of the nature of the offence. The appellants made admissions in
    their settlement of the regulatory investigation launched by the OSC in
    December 2011. The stigma or stress brought about by disgruntled investors, and
    the appellants inability to work in accounting or financial services, were the
    result of these admissions  not the delay in the criminal proceeding. There is
    no basis to interfere with that finding.

[37]

The application judge explained why he was
    satisfied that the delay had not impacted the appellants fair trial interests:
    the complainants were videotaped; much of the evidence consisted of banking and
    other records; and, as a result of the OSC proceedings which covered much of
    the same ground, the appellants recollection of events were no doubt
    memorialized in some manner back in 2012.

[38]

Further, the appellants failure to take Durno
    J. up on his offer to move the trial to an earlier date supported the
    inference that they were not overly concerned about the delay and not suffering
    great prejudice.

[39]

There is no basis to interfere with the
    application judges assessment of prejudice. His conclusion is bolstered by the
    fact that the trial was later adjourned twice, at the appellants request, and
    the fact that they did not raise delay as an issue until many months after
Jordan
was released.

[40]

I would add this. While the application judge
    rejected that case complexity justified delay over the
Jordan
ceiling on its own, he did not go on to consider case complexity as
    a factor under his transitional exception analysis. Consideration of this
    factor strengthens his conclusion that the delay was reasonable:
Morin
at pp. 791-92;
R. v. Picard
, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018]
    S.C.C.A. No. 135. The case involved voluminous disclosure and charges covering
    a significant time period. In addition to the s. 11(b) application, the
    appellants eventually brought a multi-faceted application for a stay of
    proceedings.

The ruling permitting Mr. Long to testify as
    a fact witness

[41]

As noted above, Mr. Long is a forensic
    accountant employed by the OSC. He was retained by the Peel Regional Police in
    July 2016 to, among other things, review the relevant evidence gathered by police
    and prepare a Source and Application of Funds Analysis. Mr. Long was not
    involved in the OSCs regulatory investigation of the appellants.

[42]

The Crown intended to call Mr. Long as a fact
    witness on the basis that he would not be giving any opinion evidence as an
    expert. His evidence would be limited to following the flow of money deposited
    by the various complainants through the appellants bank accounts.

[43]

The appellants opposed the Crown calling Mr.
    Long as a witness at trial on the basis that he was in a conflict of interest
    and his evidence was biased, given his employment with the OSC.

[44]

The appellants argued that Mr. Longs conflict
    of interest amounted to an abuse of process and, for a second time, sought a
    stay of proceedings for this and other reasons. The appellants further argued
    that if Mr. Long were to give evidence, he could only be called as an expert
    witness, and not a fact witness.

[45]

The trial judge dismissed their second
    application for a stay. As related to Mr. Long, she held that the issues the
    appellants raised could be explored in cross-examination and Mr. Long could,
    therefore, be called as a witness at trial:
R. v. Vuong
    and Quach
, 2018 ONSC 3348 at para. 90.

[46]

At para. 94, however, the trial judge reviewed
    the report that Mr. Long had prepared and concluded that he was not merely a
    fact witness:

In his report, he makes findings, for example,
    that payments to investors could only have been funded by other investor
    deposits. That is an opinion. He also opines that the trading was speculative
    and not profitable. Those are also conclusions made based on his review of the
    underlying facts and not just a resuscitation of the facts based on his experience
    and knowledge as a forensic accountant.

[47]

The trial judge concluded that Mr. Long could be
    called as a witness at trial but had to be qualified as an expert to provide
    his opinion evidence: at para. 98.

[48]

The day after her ruling was released, this court
    released its decision in
R. v. Ajise
,
    2018 ONCA 494, 361 C.C.C. (3d) 384, affd 2018 SCC 51, [2018] 3 S.C.R. 301. In
Ajise
, the majority held that a Canada Customs and Revenue Agency (CCRA)
    investigator did not have to be qualified as an expert witness because the
    witness offered only factual information that did not require expertise to
    present and could be assessed by the jury as a matter of logic and common
    sense.

[49]

In light of
Ajise
, the trial judge invited further submissions on whether Mr. Long
    was required to be qualified as an expert. On June 4, 2014, the trial judge
    released a further ruling:
R. v. Vuong and Quach
, 2018 ONSC 3631. Relying on
Ajise
and
R. v. Tang
, 2015 ONCA 470, also discussed
    below, she reversed her first ruling and held that Mr. Long could be called as
    a non-expert witness. However, she ruled that Mr. Long would not be permitted
    to proffer any opinion evidence at trial.

[50]

The appellants essentially advance two
    arguments. First, they argue that this case is different from
Ajise
and
Tang
and the trial judge
    accordingly erred in relying on them to permit Mr. Long to testify as a fact
    witness. Second, they argue that although the trial judge directed that Mr.
    Long would not be permitted to proffer any opinion evidence, he in fact did so.

[51]

There is no bright line for determining whether a
    witness is offering factual testimony that does not require expertise to
    present and can be assessed by the jury as a matter of logic and common sense.
    I need not determine whether the trial judge was correct in reversing her
    initial determination. In
Ajise
, although the
    Crown had not made explicit reference to the curative proviso in
    s. 686(1)(b)(iii) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, Sharpe J.A. held that even had the trial judge erred, the
    curative proviso would apply. The Supreme Court of Canada dismissed Mr. Ajises
    appeal. In brief oral reasons, a unanimous court endorsed Sharpe J.A.s
    approach to the curative proviso without deciding whether the expert evidence
    rules applied to the testimony offered by the CCRA investigator. The court held
    that given that there was no miscarriage of justice, the curative proviso was
    properly relied on.

[52]

In this case, the Crown squarely raised the proviso
    in its oral submission that there was no prejudice to the appellants. The
    proviso clearly applies. Even if the trial judge erred in permitting Mr. Long
    to testify as a fact witness, no substantial wrong or miscarriage of justice
    occurred.

[53]

I note three significant points. First, the
    appellants accept that, while not formally qualified as an expert witness at
    trial, if Mr. Longs evidence constituted opinion evidence, given his
    expertise, Mr. Long was, in fact, qualified to provide it. Second, the appellants
    did not contest any part of Mr. Longs evidence and do not identify any part of
    it as incorrect. Third, the appellants guilt turned primarily on whether they
    had deliberately lied to investors and obtained money because of those lies.
    Mr. Longs evidence did not touch on those questions.

[54]

In my view, in the circumstances, permitting Mr.
    Long to testify as a non-expert witness resulted in no prejudice to the
    appellants.

[55]

In oral argument, Mr. Quach submitted that while
    the appellants accept that Mr. Long was, in fact, qualified to provide any
    opinions he provided, had the trial judge qualified Mr. Long as an expert, they
    would have sought an adjournment to deal with him as an expert. That would
    have been the appellants third request to adjourn the trial and been made
    almost a year after they brought their s. 11(b) application. The Crown responds
    that the appellants knew well before trial that the Crown was going to call Mr.
    Long as a witness. As I have said, the appellants do not contest any part of
    Mr. Longs evidence or identify any part of it as incorrect. I remain of the
    view that, in the circumstances, permitting Mr. Long to testify as a fact
    witness resulted in no prejudice to the appellants.

[56]

I turn now to Mr. Quachs argument that the
    verdict was unreasonable.

Unreasonable Verdict

[57]

Mr. Quach argues that the verdict was
    unreasonable because there was no evidence proving he had the
mens
    rea
for fraud. Ms. Vuong communicated with investors. He
    says his role differed from that of Ms. Vuong and there was little evidence of
    direct communication between him and the investors.

[58]

I reject this argument. The verdict was soundly
    grounded on evidence that both appellants were knowing and active participants
    in the fraudulent scheme.

[59]

Mr. Quach co-founded and ran Systematech
    Solutions Inc., the corporate vehicle for the fraud. He had signing authority
    over Systematechs accounts. Payments flowed through Systematechs accounts and
    his personal banking accounts. He testified that he and Ms. Vuong run
    Systematech together and our responsibility is joint. He used investors
    money for personal purchases. He signed many of the promissory notes
    Systematech issued to investors. While the notes represented that the
    investment was risk-free, he admitted that he knew the investments were not
    risk-free.

Sentence Appeals

[60]

Each of the appellants was sentenced to 6 years
    imprisonment, less 3 months
Downes
credit for
    bail conditions and 11 days credit for pre-trial custody.

[61]

The appellants argue that the sentences imposed
    are demonstrably unfit and that they should have been granted more
Downes
credit. Mr. Quach also argues that the sentence imposed on him does
    not reflect what he says is his lesser culpability.

[62]

I reject these arguments.

[63]

This court can only intervene to vary a sentence
    if it is demonstrably unfit or the sentencing judge made an error in principle
    that had an impact on the sentence:
R. v. Lacasse
,

2015 SCC
    64, [2015] 3 S.C.R. 1089.

[64]

The trial judge found that this was a large-scale
    and sophisticated fraud in the nature of a Ponzi scheme that took place over
    a period of five years. The sentences imposed were well within the range for
    similar large-scale frauds and are not demonstrably unfit.

[65]

There is no formula for considering what credit,
    if any, is to be granted for the time spent on bail. Mitigation is given
    because stringent bail conditions can be punitive and therefore akin to
    custody. Provided that this discretion is exercised reasonably, the trial judges
    weighing of this mitigating factor is entitled to deference:
R. v.
    Dodman
, 2021 ONCA 543.

[66]

The trial judge considered the stringency of the
    appellants bail conditions. She concluded that the appellants bail conditions
    were somewhat restrictive but were not like the virtual house arrest the
    accused was under in
Downes
. Her exercise of
    discretion was reasonable and is entitled to deference.

[67]

Based on the record, the trial judge reasonably
    found that although Mr. Quach did not communicate directly with all the
    victims, he was as culpable as Ms. Vuong. The trial judge found that he and Ms.
    Vuong operated as a team and used the victims funds as their personal
    piggy-bank and, when things got messy, to pay other investors in the Ponzi
    scheme. Mr. Quach was an active participant in the fraudulent scheme to lure
    more victims to invest money so their money could be used to pay other
    victims. Further, she noted that during sentencing submissions, Mr. Quachs
    position was that he was equally culpable as Ms. Vuong.

[68]

There is no basis for this court to interfere
    with the sentences imposed.

Disposition

[69]

I would dismiss the appeals, grant leave to appeal
    sentence, but dismiss the appeals against sentence.

Released: October 12, 2021 AH

Alexandra Hoy J.A.

I agree. Gary
    Trotter J.A.

I agree. David M.
    Paciocco J.A.





[1]

The application judge was not the trial judge.



[2]

There is no dispute that the appellants caused the delay after
    March 27, 2017. The trial originally scheduled for February 2017 was adjourned
    twice at their request, and ultimately concluded in June of 2018. The first
    trial was adjourned so that the appellants could bring their s. 11(b)
    application. The second trial was scheduled to commence on September 25, 2017
    but was adjourned as a result of the illness of Ms. Vuongs mother.


