FACTUM OF APPELLANTS, WEIZHEN TANG
Court File No. C63851
M48210
COURT OF APPEAL FOR ONTARIO
BETWEEN:
THE TORONTO-DOMINION BANK Plaintiff /Respondent
-and-
WEIZHEN TANG and HONG XIAO
Appellants
FACTUM
OF APPELLANTS, WEIZHEN TANG AND HONG XIAO
Weizhen Tang
Hong Xiao
17 Silk Court
Richmond Hill
Ontario,
L4B 4A4
Tel: (416)886-8715
Self represented
Mr. Jeffrey Kukla
Gowling Lafleur Henderson LLP,
One Main Street West
Hamilton, Ontario, L8P 4Z5
Tel: 905 – 540 – 2467
Fax : 905 -523- 6813
Lawyer for the Plaintiff
Ms. Pandora Du
Du Law Office
55 Town Centre Court
Suite 700
Toronto, Ontario
M1P 4X4
Lawyer for Aping Co. creditor
Ryan Stern and Michael Wilchesky
ROCHON GENOVA LLP
Barristers ? Solicitors
121 Richmond Street West
Suite 900
Toronto, ON M5H 2Kl
File : You –Shi Lou ( Execution No. 11-0005624)
Tel: 416-363-1867
PART I -NATURE OF MOTION
1. The Appellants, Weizhen Tang and Hong Xiao are self represented and the appellants never intended to be self- represented or to act in person, we never consent to these proceedings and
2. we are forced to bring this motion by ourselves seeking a panel review of this court Justice Roberts Order to dismiss our motion to extend the time to perfect our appeal in a few days and stop us to appeal.
3. The Toronto-Dominion Bank ("TD") found the opportunity to kill my appeal and submits that our motion to be dismissed because of their interest and the interest of Justice Roberts like all other justice who always dismiss our motions and appeals and deprivation of our legal rights since we are not a party of the Canada law society.
4. A few days’ delay will not prejudice TD's rights and the rights of other creditors of the Appellants, all the other creditors are unsecure creditors and court default judgments and front runners, opportunists. It is business related and why they wanted our money from our house injustice and inhuman because they are lawyers or have a lawyer; The unsecure creditors are made by the courts and for the law society.
5. The Ontario Court Justice should know and ought to have known that the Law firm Gowling WLG Canada LLP is a real fraudulent institution, who defrauded the public and us , defrauded a lot of our money we borrowed from Toronto Dominion Bank and took money from our house with the assistant of the courts.
6. Justices always believe lawyers and trust lawyers and agree with lawyers, especially when the lawyers are from the crown attorney office, OSC or a big law firm and they take and give our money, the public money as money order to their friends that is why our appeal always lacks merit.
7. It is obviously a conflict interest is in play that we have to have a lawyer or more business for the law society. Without lawyer we have no prospect to succeed, the reason behind their decisions is that we do not have lawyer or counsel to be successful.
8. I do not mind to pay the court justice and lawyer in Canada, I wanted to pay you as much as I could if you do not restrict me and destroy my business.
9. Remember, the Constitution is NOT the Law of the Land - the Uniform Commercial Code is! There are no Constitutional or common law courts, except the Supreme Court which is available only to very few wealthy and determined people. Constitutional and/or common law courts have been replaced by statutory courts of Admiralty law.
10.I believe that the Canadian courts are controlled by local law firms, judges come from there and when they retire, they go back there and work for the law firm, the court is not the public. A court justices such as Roberts J.A. sit alone and are intimidated by big firms. And they come from these same law firms and go back there when she retire.
11. We are asking for a panel review and wish we had better chance since the Appeal Court sits in panels of three and therefore difficult to scare them by law firm. the Supreme Court sits in panels of nine and therefore more difficult to scare them and they don't look for jobs when they retire.
No matter what Justice does, our message to the court will resonate forever. An injustice has been committed. Everybody has to listen to the court, but nobody trusts the court.
12. Interest of The justice of the case does require an extension be granted and the court should order we use our own money in the court to retain counsel so we could have merit to appeal.
11 . We had lot of money and a valuable house, we could use our money and our house to retain lawyers and to defend ourselves in court and Ontario court judges and judge of the appeal court knew and ought to have known and intentionally made us lose our rights and freedoms and money and house, injustice has committed repeatedly.
13. It is the Justice Roberts’ intention to kill our appeal and bring further injustice and the endorsement and order of Justice Roberts clearly violated our legal rights.
12. Our legal rights and constitutional rights have been deprived by many superior court of justice and this court over the years. Our legal Rights: Life, liberty and security of person
Charter section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Charter Enforcement
Marginal note: Enforcement of guaranteed rights and freedoms
Charter Section 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
· Marginal note: Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
· It is a Conflict of Interest for a Justice to take money from the public without contract and consent and simply give it to their lawyers or their law firm without a proper procedure, I believe those are High crimes and high misdemeanors are actions performed in an official capacity by a judicial official like Justice who violate the basic principles of the Justice and that therefore subject to impeachment.
P,ART II – FACTS
1. On June 26, 1999, my wife and I purchased a home located at 19 Robinter Drive, Toronto, Ontario (“19 Robinter Drive”) for $418,000.00. We secured a first mortgage with the Royal Bank of Canada in the amount of $350,000.00. We also secured a second mortgage with HSBC. Attached hereto as Exhibit “G” is the parcel
2. I was a customer of TD Canada Trust, the Toronto -Dominion Bank since 1990 until Oct. 2012 when TD closed all our family member accounts and TD Canada Trust or Toronto Dominion Bank cause us that we could not pay their mortgage and forced to legal proceeding.
3. On March 12, 2009, my wife and I withdrew $600,000.00 From the Toronto Dominion Bank Line of Credit for the purpose of discharging our first and second mortgages on 19 Robinter Drive and re-financing with TD Canada Trust. Attached hereto as Exhibit “J” is a letter from Alex Ranini, a financial advisor with TD Canada Trust, dated May 8, 2009, confirming same. Also attached is an account history showing activity on March 12, 2009 with $362,669.44 being used to discharge the mortgages and the remaining $236,800.00 being used for a bank draft. Any discrepancy between those two sums is attributed to in-house legal fees for the discharge of the mortgages.
4. In order to pay my investors’ money back and earn a better return and show my sincerity to my investors, I required a further investment. I decided to invest my own money. For this I had to convince my wife, Hong Xiao, to let me use the approximately $200,175.00 in surplus from the refinancing of the mortgage re-finance. Attached hereto as Exhibit “D” is a bank draft in the amount of $236,800.00 as drawn from our line of credit with TD Canada Trust (the “Line of Credit”) and made payable to the representative investor Peter Lin, also known as Aiming Lin. Mr. Lin kept approximately $36,625.00 for administration costs and anticipated legal fees. The balance, that is, $200,175.00 was first deposited into the BMO Account and then transferred to the IB Account on March 17, 2009. Attached hereto as Exhibit “E” are the bank statements indicating same.
5. On March 16, 2009, I entered into a written agreement with Si Yi Qui and Guosheng Wang whereby they agreed to invest $150,000.00 in Oversea Chinese Fund Limited Partnership. Attached hereto as Exhibit “B” is the written agreement and the bank drafts totalling $150,000.00. This money was first deposited into the BMO Account on March 16, 2009. On the same date, $50,000.00 was transferred to the IB Account. On March 17, 2009, $100,000.00 was transferred to the IB Account. Attached hereto as Exhibit “C” are the bank statements indicating same.
6. On March 16, 2009, I entered into a written agreement with Si Yi Qui and Guosheng Wang whereby they agreed to invest $150,000.00 in Oversea Chinese Fund Limited Partnership. Attached hereto as Exhibit “B” is the written agreement and the bank drafts totalling $150,000.00. This money was first deposited into the BMO Account on March 16, 2009. On the same date, $50,000.00 was transferred to the IB Account. On March 17, 2009, $100,000.00 was transferred to the IB Account. Attached hereto as Exhibit “C” are the bank statements indicating same.
7. The funds from TD Bank being frozen and held by Interactive Brokers Canada Inc. (“IB”), located at 1800 McGill College Avenue, Suite 2106, Montréal, Québec, in an account belonging to one of the Respondent Corporations, Oversea Chinese Fund Limited Partnership, under account no. U149319 (the “IB Account”).
8. The IB Account was opened in 2004 and was used to trade and make monies for investors. Upon receipt of investment monies, our standard practice was to first deposit them in an account at the Bank of Montréal, located at First Canadian Place, P.O. Box 3, Toronto, Ontario, under account no. 0002 1561-448 (the “BMO Account”). The monies were then transferred into the IB Account.
9. I created and was running an investment and hedge fund business, to facilitate my business, I formed the following corporate entities in Canada for the purpose of securing investments primarily from Canadian investors:
? Oversea Chinese Fund Limited Partnership ("Oversea"), a Toronto-based hedge fund formed in December 2001 and organized under the laws of the Province of Ontario;
? Weizhen Tang & Associates, Inc. ("WTA"), which served as the general partner of the hedge fund and was incorporated under the laws of the Province of Ontario;
10. There was financial crisis or Tsunami from 2008 to March 2009 and investors were scared all over the World. I successfully avoided the financial crisis, but did not avoid the massive withdrawal of over 28 million in a year and investors run, there was one investor complained to OSC and 99% did not complain and support my effort.
11. On March 12, 2009, OSC launched investigation and had interview with me without a lawyer. Since then our nightmares began. I was targeted and profiled by OSC.
12. On March 18, 2009, pursuant to subsection 136(1) of the Ontario Securities Act, RSO 1990, c S5, the Ontario Securities Commission (the OSC”) directed IB to retain all funds, securities or property they had on deposit, under their control or for their safekeeping, in accounts in the name of the Respondent Corporations and myself in a personal capacity until such further time as the OSC revoked the Directions, consented to a release of particular funds or until the Ontario Superior Court of Justice ordered otherwise. Attached hereto as Exhibit “L” are the Directions.
13. March 23, 2009 Spence, J. orders that freeze remains in effect to April 30, 2009
14. On March 25, 2009, the Ontario Superior Court of Justice ordered the continuation of the aforementioned Directions until April 30, 2009. Attached hereto as Exhibit “M” is the court Order of March 25, 2009. Since April 30, 2009, the Order has been renewed several times.
15. Given that the IB Account is in Montréal, the Autorité des Marchés Financiers (the “AMF”), the OSC’s equivalent in the Province of Québec, issued freeze Orders of their own with respect to any dealings with the IB Account on behalf of myself or the Respondent Corporations. The AMF freeze Orders have also been extended several times since.
16. The circumstances of the offences were originally investigated by the Ontario Securities Commission. This included the OSC seizing approximately $400,000 under s.126 of the Securities Act (Ont.). The Applicant claimed an interest in $200,000 of that money. B y Order of Justice Peppal the money seized was to be disbursed, pro rata, to the investors who had an interest in the money at the conclusion of the criminal proceeding (subject to further order of the Court).
17. On May 24, 2011, I was charged with one count of fraud over $5,000.00 contrary to subsection 380(1) of the Criminal Code of Canada, RSC, 1985, c C-46. I applied and was refused legal Aid. My appeal as refused by the director of appeal for legal Aid Ontario (the LA). My constitutional right to counsel was a major issue in criminal proceedings. Three (3) hearings were heard before Justice Nordheimer on July 12, 2011, August 15, 2011 and September 23, 2011, wherein the release of my $200,175.00 investment was discussed for the purposes of retaining counsel, failing which my only remedy would be to bring a Rowbotham application. Attached hereto as Exhibit ”M” are the transcripts of the hearings
18. At the July 12, 2011 hearing, Justice Nordheimer noted that I was at a disadvantage without counsel to defend against a serious criminal offence. The reasons for my denial included the number of parties claiming an interest in the funds placed in the IB account and the fact that the funds were transferred by Mr. Lin. The hearing was adjourned for one month so that the LAO anew. Importantly, Justice Nordheimer stated at the page 33, lines 17 -20, “ if for good reasons this court feels it necessary to remove the freeze on those funds, this court is capable of doing that”.
19. Mr. Hutchison, the OSC counsel: “My submission to you is that what you can't do is use either s. 24(1) or this proceeding to somehow indirectly undue the order that was made by Justice Peppall with respect to the monies that are held in the interactive broker account. That's an order validly made, never been appealed, never been subject to review or challenge by Mr. Tang in any formal way. And it would be procedurally unfair to all of the other parties in this case to have their interest in those funds dealt with in the context of this kind of an application. I understand the desire to come up with a solution that allows Mr. Tang's criminal case to move forward, and I certainly understand the concerns with respect to not being unduly formalistic in the context of a self-represented individual, but my submission is that we can't allow our desire to be fair to Mr. Tang to draw us into an unfairness of the other individuals, ascertained and unascertained, who may have an interest in those funds. And we can't use it as a mechanism, in my respectful submission, to go around the procedures that are, in fact, in place to allow Mr. Tang to attack that order directly, if he chooses to.”
20. Justice Nordheimer: “ Well, let me take a step back, because it may be helpful to repeat the context in which all of this arises. First of all, I'm not sure that I agree with you that this Court doesn't have the jurisdiction to address the funds that were the subject of my colleague's order, particularly because, I stand to be corrected, my understanding is that order specifically said subject to any further order of the court.
21. Now, the issue as it presents itself, from my perspective, and this is how this whole matter began, is I am faced with an unrepresented accused facing serious criminal charges in a fairly complicated proceeding, who comes before me to conduct a judicial pretrial with respect to those charges, him having been committed to trial at the Ontario Court of Justice. And when my first inquiry at the pretrial of Mr. Tang is, "Do you intend to continue to represent yourself in these proceedings?" I am told immediately that he is desirous of having counsel with respect to this matter, but that Legal Aid has denied his application for a certificate, and he has exhausted his appeal routes with respect to Legal Aid, but that he has $200,000 of his own money, which he could use to fund his defence, but he can't access that money because another government agency has frozen it.”
22. On August 15, 2011, Justice Nordheimer reiterated the conflict between two (2) agencies off the same government, i.e. one government agency was saying they would not provide me with counsel because I had funds of my own to pay for same and another government agency was saying I could not access to those monies in order to pay for counsel. Justice Nordheimer stated at page 14, lines 28- 3-, that “ there was no dispute that at least $200,000 of Mr. Tang ‘s own money went into this account”. The matter was again put over until September 23, 2011 wherein I was finally denied by legal aid because, as stated at page 17, line 18 -22, I provided incomplete or inconsistent information which I believed is mostly attributable to my deficiencies of the English language. On September 23, 2011, I applies for a Rowbotham 1 order to stay the charges against me until such time as. the Attorney General provides funding to him to retain counsel Justice Nordheimer acknowledge that Mr. Tang does not have experience-with the legal system. He also acknowledge that I would be much better served if I had counsel. Indeed the trial process itself would be better served if Mr. Tang had counsel, Nordheimer J. erred in refusing to appoint counsel for the Applicant pursuant to his R. v. Rowbotham application
23. On July 12, 2012, I made an application for the crown to withdraw the criminal charge and put the matter to OSC, Justice Nordheimer: “ Well, let me ask the Crown counsel this one question. Thinking broadly, but, if I can use that expression, is there any basis the Crown can see for resolution of this charge that wouldn't involve a plea. For example, leaving the matter to be dealt with by the Ontario Securities Commission in terms of penalties and that type of thing.
24. The crown insisted to go on trial and concerns of charter issue 11b, a trial within a reasonable time.
25. On September 10, 2012, I was forced to stand on trial without counsel and expert.
26. During the trial between September 10, 2012 to Oct. 30, 2012, a historic 49 days, I had no legal counsel and no financial and investment expert to testify on my behalf and there was no expert to testify during the trial, the only expert testified against me was OSC financial accountant, not even a forensic accountant, the trial judge erred in admitting the evidence of the Crown forensic accounting “expert” should not have been admitted as he was an investigator as opposed to an “independent”.
27. On September 23, 2011, The crown admitted before on that “ the complexity lies not in any legal issues but in the nature of the solicitation and the mechanics of the investment. One must realize that these enterprises were not just there, they were created by the accused persons. Surely, the creators and managers of such an enterprise knew the intricate details more so than a lawyer or a lay person.
28. “In the present case, the accused is alleged to have defrauded the investors in four ways. And he either committed these frauds or he did not. He either deceived the potential investors about the nature of the investments or he did not. He either provided false accounts to these investors or he did not. He either operated a Ponzi scheme or he did not. He either collected two million from his major investment vehicle or he did not. And no one can understand that better than him. “
29. On October 30, 2012, after a 49-day trial, I was wrongfully found guilty as charged because nobody understand my business and nobody watch and nobody care.
30. On Feb. 1, 2013, The trial judge stated that I was maliciously sentenced to imprisonment for 6 years. Additionally, the Applicant was fined $2,849,459.50 in lieu of forfeiture with 5 years’ imprisonment consecutive in default.
31. On Sept 10, 2014 The appeal court duty counsel Mr. Michael Lacy found that (a) Nordheimer J. erred in refusing to appoint counsel for the Applicant pursuant to his R. v. Rowbotham application; (b) The evidence of the Crown forensic accounting “expert” should not have been admitted as he was an investigator as opposed to an “independent”; (c) JUSTICE A. O'MARRA erred in finding that this was an appropriate case for a fine in lieu of forfeiture given the purpose of such an Order (i.e. to deprive fraudsters of their unlawful personal gain); the trial judge erred in finding that this was an appropriate case for a fine in lieu of forfeiture given the purpose of such an Order (i.e. to deprive fraudsters of their unlawful personal gain;
32. After I lost my name, my legal rights and freedoms, the Gowling WLG Canada took our money and house and defrauded our investors.
PART III ISSUES AND THE LAW
1. That the most significant new issue is that the action of Gowling WLG Canada LLP , the law firm and other law firm are unlawful and wrongful and all previous litigation against the defendant /appellant were unfair because the judgment was obtained by default and at no time did the defendant have an interpreter or counsel and impartial expert or tribunals in all our appearances in the civil matter and therefore did not get a fair hearing as his English language skills both in speaking and writing, leave a lot to be desired.
2. There is the significant new issue of the conflict of interest involving counsel for Gowlings whose associate was working for the OSC during the investigation and prosecution of the respondent and her working relationship with the person who charged him.
3. The issues relating to the conflict of interest involving Kelly McKinnon and the law firm that she works with are dealt with in the new affidavit. The law for the bank from Gowlings therefore is tainted by conflict of interest as well.
4. That it has to be remembered that OSC froze the appellants’ accounts, disabling him from hiring counsel and this disability directly benefitted Kelly McKinnon and her law firm and it is also to be noted that Kelly McKinnon still works for the OSC that froze the accounts.
5. That the OSC froze the accounts to benefit the investors and in fact there is a court order to that effect but by claiming the frozen money for herself and her law firm, Kelly McKinnon and her law firm are in a conflict of interest position.
6. There is also an issue of reasonable apprehension of bias here.
7. That Kelly McKinnon?s law firm is also representing TD Canada Trust and there this same law firm has claimed legal fees from my equity instead of being paid by their client. The Toronto Dominion Bank, another conflict of interest, reasonable apprehension of bias and the course of conduct to destroy the appellant financially in any every which way.
8. That these and other issues have not been litigated at all or fully.
15. The two branches of the same law firm have already taken a chunk of the money for themselves to the tune of close to a million dollars from the Canadian and US accounts involving the appellants, even before the final conclusion of the criminal case and for themselves instead of the appellant or the investors.
- Affidavit of Appellant
16. The appellant had asked for access to the funds borrowed from the TD Bank so that he could retain counsel both at the OSC, criminal courts and civil court as he had no legal knowledge about the law or legal process.
- Affidavit of Appellant.
17. The OSC, the crown attorneys and Legal Aid Ontario teamed up to prevent the respondent from accessing his money to retain counsel to fulfil his constitutional rights or to be funded by the State in order to retain counsel. It is as a result of not having counsel that enabled the orders in the civil matters to be issued as perhaps if he had counsel, the orders or some of the orders would not have been issued.
- Affidavit of the Appellant .
18. The appellant was not represented by counsel or was not present or was in prison when all the proceedings in the OSC and the crown attorney office that led to the various orders took place.
- Affidavit of the Appellant .
19. The appellant is applying leave to introduce new evidence on this appeal.
20. The appellant as can be seen from his affidavit, did not understand the process in the civil or criminal trial at all.
21. The appellant was clearly incompetent and ineffective in his self-representation both in the civil and criminal matters and the civil matters were never resolved on the merits after full knowledgeable representation.
- Affidavit of Appellant .
22. The Appellants were on welfare because of OSC and the Toronto police since 2010 and cannot use our own money to retain counsel even for this proceeding and he is trying to put his best foot forward.
- Affidavit of Appellant sworn Oct. 2, 2017 . Exhibit I
23. Mr. Tang and Ms. Xiao have been forced to live in a basement apartment owned by friends. They have been unable to make the monthly rent payments, and are currently only paying the bill for utilities.
24. Since 2010, Mr. Tang and Ms. Xiao have been recipients of Ontario Works, i.e. welfare.
Affidavit of Weizhen Tang sworn Oct. 2, 2017, Exhibit I
Mr. Tang's Financial Difficulties
Affidavit of Weizhen Tang sworn Oct. 2, 2017
PART II -ISSUES AND THE LAW
1. It is submitted that this Honourable Court has the discretion to vary, terminate, set aside, modify or annul all previous orders that permitted the this law firm to claim the money for themselves instead of allowing access to the appellant to retain counsel to fulfil our constitutional rights to counsel .
2. The issue of conflict of interest as fully elaborated in the affidavit and summarised above raises a serious issue needing discretionary intervention at this point.
3. It is submitted that the appellants did not get a fair hearing in all the civil courts pertaining to the default judgments in this matter given the issue of the frozen accounts and the involvement of the two law firms because he had no legal representation, the appellants was clearly incompetent and ineffective and had no Amicus curiea in the civil matters as there is no provision in the law for that.
4. That the appellants was denied his right to a fair trial or hearing because he was denied counsel, was self-represented and this self-representation was incompetent and ineffective, resulting in a miscarriage of justice and this lack of legal counsel was occasioned by the OSC, the crown, legal Aid and the two law firms.
5. It is submitted that in order to get a full flavour of the consequences on the respondent not having legal counsel in both tribunals can be gleaned from the affidavit and submissions below on the issue of what courts have stated relating to the right to have legal representation in the criminal context, which applies with modifications to the civil context.
6. It is submitted that the court derives jurisdiction from the type of order that I am seeking in Rule 37.1 14 (2) which states that “where the court may set aside or vary an order obtained without notice or in other circumstances (emphasis added).
7. That this case comes under the rubric or colour of right of “in other circumstances” or Interests of justice umbrella, as the respondent did not have counsel throughout the process.
8. It is submitted that this kind of discretion is what is alluded to by Justices Perell and Morden in their book The Law of Civil Procedure in Ontario (2014) at page 13 paragraph 1.37 when they state that “the rule-makers are sensible in making the application of many rules discretionary and flexible because it is not possible to foresee in any detail the wide range of differing fact situations that will present themselves for decision, and justice requires that each case should be decided upon its own particular facts”. Citing the Clairmonte v. CIBC [1970] No. 1506, [1970] 3 O.R 97 at 111 (Ont. C.A) the authors state that “Discretion means choice and in some cases the discretion may be so wide that opposite decisions could both be acceptable”. That is the spirit of discretion that is requested here.
9. The predicament the respondent found himself in not having counsel both at the civil trials or motions and the criminal process was because the OSC froze his account. In the interests of justice, discretion must be exercised to right this imbalance which had severe reverberations in the criminal process as well as the balance of this factum will show.
10. In the R. v. Nason, 2014 ABPC 33, the justice note that the complexity of the word “undertaking”, the accused person must also understand the legal definition of representation as contained in s. 92(3)(b) of the Act. The purpose of this particular section was discussed in the case of Limelight Entertainment Inc., Re, 2007 ABASC 710. Representations deal with a wide variety of statements which induce investment insecurities based on a prospect of a liquid market in which to trade and a potential profit from increases in value. The Court, in considering what amounts to representations, must look at the context of the evidence and the investor’s understanding of the statements made, if any. Further, accused persons charged under the Act must understand the concept of unfair practice as defined in s. 92(5) of the Act. Unfair practices include a number of different activities including unreasonable pressure, taking advantage based on a list of factors, imposing harsh, oppressive or one-sided restrictions or terms, and other proscribed activities.
11. Section 92 of the Alberta Securities Act requires an accused person to understand the term reasonably ought to know, and the legal definition of a misleading statement which would reasonably be expected to have a significant effect on the market price or the value of a security or “an exchange” document. As outlined in Mandyland Inc., Re, 2012 ABASC 436, individuals charged under s. 92(4.1) of the Act, must understand the nature of reasonable knowledge, material statements, contextual analysis of what amounts to a material statement and the concept of what kind of statements might have a significant effect on the market price or value of a security. Finally, there is a possibility of the accused raising defences such as reliance on legal advice as a defence to allegations of misstatements. In the Ontario Securities Commission case of Mega-C Power Corp. (Re), (2011) 33 OSCB 8290, which was affirmed by the Alberta Securities Commission in Arbour Energy Inc., Re, 2012 ABASC 131, the Commission reviewed a defence based on reliance on legal advice. There are a number of criteria which must be shown by an accused to rely upon this particular defence as discussed in those cases.
12. In summary, this Court disagrees with the statement of the Prosecution that the charges against Mr. Nason amount to “Securities Law – 101”. While the Prosecution, with its considerable experience, may view this case as “straightforward” – which then leads to the question as to why they requested case management in the first place – this Court views that mounting a successful defence requires not only extensive knowledge of securities law, case law, Commission rulings, but also knowledge of the affirmative defences, their legal definitions and the rules of evidence that may apply to mounting those defenses.
13. Equality is paramount and MANDATORY before the law and this has to be observed lest you go deeper into dishonor. I am showing you forgiveness in law with an opportunity to cure this matter honorably and further terms can be discussed where a mutual, meeting of the minds can offer you remedy. It is hereby also Demanded that my stolen property be returned immediately and any further Trespass on my Estate Cease and Desist by all involved parties.
14. As the appellants affidavit shows, the appellant was not effective both in the civil and criminal process to his prejudice and severe consequences, just because he did not have counsel.
15. With necessary modifications, what happened in the criminal process recall the severe consequences that started in the civil process and the severe consequences continue to reverberate in both.
16. Just as an accused person in criminal cases ought to have an effective and competent counsel, so it is and must that a person facing severe consequences touching on his livelihood in a civil matter ought to have the assistance of competent and effective counsel in order to meet the highest test of procedural fairness and justice as well as meeting the standards of a fair trial. See Khan and the University of Ottawa. (Ont. C. A)
17. A person who demands the assistance of counsel because he knows his weaknesses but is not afforded or is prevented from having counsel whom in fact he can afford, cannot be said to have had a fair hearing or trial or has been afforded the highest indulgence of the principles of fairness and procedural justice. Khan Supra.
18. It would be one thing if the respondent raised the issue of counsel at this stage, it is another if he raised the issue of counsel earlier. The respondent has been raising the issue of counsel from the beginning both in the OSC and criminal proceedings. The respondent knows the facts, but he stated he does not know the law and needed representation.
19. Appellant pleaded his criminal appeal as applicant in the Supreme Court on the issue of lack of representation, in the following paragraphs which must guide this Honourable Court in the use of discretion in considering the order requested herein.
20. An accused in a complicated criminal trial with serious consequences that has retained counsel is entitled to the effective and competent assistance of that counsel. The standard should be no less if the accused is self-represented or is assisted by Amicus Curiea. In this case the Applicant was self-represented. Amicus was appointed to ensure the applicant got some assistance. The conduct and assistance of Amicus should not be of a lesser standard than that of any counsel or counsel representing the accused. If anything it must be more subject to scrutiny because Amicus was appointed in recognition of the fact that the accused person has no legal representation.
R. v. Silvini (1991), 68 CCC (3d) 251
21. Ineffective representation can be cast as either: (i) a Charter violation pursuant to subsection 24(1) of the Charter or (ii) a miscarriage of Justice pursuant to s. 686 of the Criminal Code. There is no need to frame the issue as a Charter issue pursuant to a breach of ss. 7 & 11(d) of the Charter. In Garofoli (1988) 41 CCC (3d) 97 at 152 Martin J. A. stated:
22. I should add that, apart altogether from constitutional considerations, if, in any case, the court considered that there was a real possibility that a miscarriage of justice had occurred due to the flagrant incompetency of counsel we would be entitled to intervene under s. 613(1)(a)(iii) of the code. Section 613 (now 686) reads as follows:
686. (1) On the hearing of an appeal against a conviction [...], the court of appeal
23. (a) may allow the appeal where it is of the opinion that (iii) on any ground that there was a miscarriage of justice
R. v. Garofoli (1988), 41 C.C.C. (3d) 97
24. It is submitted that the Applicant’s affidavit which constitutes new evidence clearly establishes that the self-represented applicant was incompetent, and so was Amicus. Amicus advised and discouraged the applicant from calling character witnesses; Amicus did not advise the applicant who couldn’t afford expert witnesses to call such witnesses despite being told categorically by the applicant that the applicant needed to call expert witnesses; the Amicus did not advise the applicant on the various motions that could have been brought; the Amicus did not mention in his closing address despite being reminded by the applicant that the applicant was facing the current financial tsunami which affected his operations like so many similar financial investment operations; the Amicus did not fully bring out the defence of lack of mens rea; Amicus’s address to the jury started out almost like a caricature of the applicant; the Amicus did not assist the applicant in trying to have the video of February 27, 2009 excluded from being admitted as it was more prejudicial than probative, in fact the amicus during pre-charge conference submitted that that video should be entered for the truth of its contents in relation to what the applicant was saying in the video and so many other omissions and commissions.
Justice Cory of the Supreme Court of Canada stated in R.v.S. (R.D) [1997] S.C.J. No. 47 at para. 91 that, “A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society”. The applicant here did not get a fair trial as a self represented applicant in a complex case, assisted by Amicus who was himself ineffective and incompetent.
Recognising the serious nature of the fairness issue in criminal trials, the Supreme Court of Canada has directed the Court of Appeal to carry out its duty to ensure that the appellant had a fair trial and if not to act decisively to reverse any unfairness: R. v. Caccamo (1975) 21 C.C.C (2nd) 257 at p. 265 (Spence J); R.v. C (M.H) (1991), 63 C.C.C (3d) 385 at p. 394. (McLachlin J. as she then was).
An unfair trial is a miscarriage of justice. McIntrye J of the Supreme Court of Canada stated in R.v. Fanjoy (1985), 21 C.C.C (3d) 312 pp.317-18 that, “A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice”.
Self representation and the incompetence and ineffectiveness of both the self represented applicant and Amicus, including the omissions and commissions of Amicus alluded above and in the applicants affidavit in this case combined to result in the unfairness of the trial as already stated. Doherty J. of the Court of Appeal for Ontario wrote in R. v. W (W.) , (1995), 100 C.C.C (3d) 225 at pp.234-5, that “If an accused does not receive the effective assistance of counsel at trial, the adversary system cannot function properly, the appearance of fairness suffers, and the reliability of the verdict is called into question. Ineffective legal assistance at trial may result in a miscarriage of justice necessitating the quashing of the conviction”.
It is submitted that a self represented accused in this case, because of his incompetence and ineffectiveness was no match with an experienced crown attorney. The adversarial system was skewed. Amicus constituted “legal assistance?? albeit of a very limited nature but that assistance was also ineffective and incompetent.
It is of national importance that a self represented accused be accorded a fair trial in the context of an adversarial criminal justice system which exists in a free and democratic society.
From the preliminary hearing where it became clear even to the judge and same crown counsel who conducted the jury trial, that the applicant was incapable of cross-examining witnesses necessitating the preliminary hearing judge to try to assist the applicant at long stretches of time by cross-examining the witnesses himself (the trial judge) to the trial proper, it cannot be stated now that the justice system did not know that the trial would be unfair. The applicant brought several Rowbotham applications including in the Court of Appeal, all of which were denied, serve for the sentence appeal. The applicant exercised due diligence in trying to ensure that he got a fair trial by bringing Rowbotham applications throughout including to this Honourable Court.
The Appellant has met the procedural requirement for the receipt of new evidence. Fresh evidence in the form of an Affidavit will often be required in order to permit the court to realistically consider the competence of the self-represented Applicant and Amicus in this case.
PART III: ADDITIONAL ISSUES
The circumstances of the problem were originally investigated by the Ontario Securities Commission. This included the OSC froze approximately $400,000 under s.126 of the Securities Act (Ont.). I am the Applicant who claimed an interest in $200,000 of that money. By Order of Justice Peppal the money frozen was to be disbursed, pro rata, to the investors who had an interest in the money at the conclusion of the criminal proceeding (subject to further order of the Court).
Mr. Hutchinson submitted to the court that I could not use my own money, he said “ Mr. Tang, the only one that I can think of that could properly sought by Mr. Tang and the only order that could properly be made by Your Honour in the context of a criminal proceeding is in the nature of a Rowbotham order. My submission to you is that what you can't do is use either s. 24(1) or this proceeding to somehow indirectly undue the order that was made by Justice Peppall with respect to the monies that are held in the interactive broker
account. That's an order validly made, never been appealed, never been subject to review or challenge by Mr. Tang in any formal way. And it would be procedurally unfair to all of the other parties in this case to have their interest in those funds dealt with in the context of this kind of an application. “
“ I understand the desire to come up with a solution that allows Mr. Tang's
criminal case to move forward, and I certainly understand the concerns with respect to not being unduly formalistic in the context of a self-represented individual, but my submission is that we can't allow our desire to be fair to Mr. Tang to draw us into an unfairness of the other individuals, ascertained and unascertained, who may have an interest in those funds.
And we can't use it as a mechanism, in my respectful submission, to go around the procedures that are, in fact, in place to allow Mr. Tang to attack that order directly, if he chooses to. “
Justice Nordheimer : “ Well, let me take a step back, because it may be helpful to repeat the context in which all of this arises. First of all, I'm not sure that I agree with you that this Court doesn't have the jurisdiction to address the funds that were the subject of my colleague's order, particularly because, I stand to be corrected, my understanding is that order specifically said subject to any further order of the court. Now, the issue as it presents itself, from my perspective, and this is how this whole matter began, is I am faced with an unrepresented accused facing serious criminal charges in a fairly complicated proceeding, who comes before me to conduct a judicial pretrial with respect to those charges, him having been committed to trial at the Ontario Court of Justice. And when my first inquiry at the pretrial of Mr. Tang is, "Do you intend to continue to represent yourself in these proceedings?" I am told immediately that he is desirous of having counsel with respect to this matter, but that Legal Aid has denied his application for a certificate, and he has exhausted his appeal routes with respect to Legal Aid, but that he has $200,000 of his
own money, which he could use to fund his defence, but he can't access that money because another government agency has frozen it. We then, as I think I mentioned at one of the original hearings, have this unfortunate situation where one government agency is saying we won't give you counsel because you have funds of your own to pay for counsel and another government agency is saying you can't have access to those monies in
order to fund counsel. There's a certain apparent conflict in the views of two agencies of the same government in that regard, but be that as it may, those things can happen, because they have different interests to protect.
The issue then presents itself, from my perspective, as I believe at one point I referred to this as being akin to a Rowbotham application. Because either on a strict Rowbotham application, I would order the charges stayed until such time as the Attorney General provide counsel. That would be at the public expense. The issue then becomes why the taxpayers in the Province of Ontario should, in the first instance, fund Mr. Tang's defence if Mr. Tang has monies that could be used for that purpose, regardless of other claims by other people to those matters.
This matter proceeded, at least initially, and it might still, on the basis that there was no real dispute that that $200,000 of funds belonging to Mr. Tang had gone into this particular account, even though it may be that subsequent to that other monies came in and others went out such that you can't tell one dollar from the other. But there was no dispute that at least 200,000 of Mr. Tang's own money went into this account.
With that factual premise, the issue then becomes does the Court have the right to order that those funds be used to pay for Mr. Tang's constitutional right to counsel, as an -- in priority, for lack of a better word, to any claims that any people may have in civil proceedings, as essentially execution creditors or execution creditors in waiting or however you wish to put it, since some, I assume, don't have yet judgments against Mr. Tang in terms of their claim. In other words, do their claim that these funds might be used to redress their losses in some fashion have to take a back seat to Mr. Tang's right to use those funds to fulfill his constitutional rights to counsel and to make full answer and defence?
Mr. Hutchinson for OSC : “ Now, Your Honour has properly pointed out that the order that freezes these funds initially begins with a direction from the Securities Commission. Your Honour will note that the purpose of that order is to preserve those funds for the purposes of the administration of securities law in the province, including protecting investors. It is on the same order as a Mareva injunction. In my respectful submission, there are likely individuals who are potential execution creditors who have not sought an instrument like a Mareva injunction because they know this order is in place; it has been confirmed by this
court on several occasions. And to the extent that the funds were in issue, they have been dealt with by the court when Justice Peppall ordered that they be distributed at the conclusion of the criminal case on a prorated basis. In my respectful submission, it would be more than just ironic if in the face of an order for a prorated distribution, the only person to receive dollar for dollar his money out of those trust funds was Mr. Tang for the purposes of his criminal defence.
Justice Nordheimer : “ But doesn't the fact that the order specifically doesn't take effect until criminal proceedings are done suggest that they are intended to be subservient to those criminal proceedings?
Justice Nordheimer : “ But it was a procedure, with respect, as best as I could tell, that didn't take this issue into account. It was a procedure designed to deny, quite fairly, a group of competing claims in a civil context. But it doesn't appear that at any point in time that the ramifications, such as they were, for the criminal process were taken into account. And very well had that issue been raised, it might
have led to a different --I'm not saying it would have, but it might have led to a different result. It was like one person wasn't at the party and that one person was the criminal process. You say that the court was, without putting words in your mouth, Mr. Hutchison, can't or shouldn't sorry, if you will, reorder the priorities in terms of claims to the funds, but it doesn't seem to me in one instance to be much different than a bunch of creditors got a Mareva injunction restraining the movement of the assets of a person, and that person came to the court and said, "Well, it may be fine that you don't want me to send this money over to Greece, who could use it right now, I still should have access to it to pay my legal fees:" The civil court might well say, "Absolutely you can have access to legal fees." Or perhaps in a different context, the Government of Canada comes along in a drug prosecution and seizes a bunch of assets because they are alleged to be proceeds of crime or otherwise related to the criminal
activity, and the person said, "Well, I need access to those assets to pay my counsel." It's pretty routine for this Court to say that you have a right to access, even though, in essence, that person is using the very things that the government claims should be reverted to the taxpayer in order to pay for their lawyer. It strikes me this is not that dissimilar.
MR. HUTCHISON: Let me tell you what I say is, in my respectful submission, is the difference. The difference is that the money we're talking about is not the money that is claimed by the State. You always see obtain the order to freeze it, but not so that the OSC
could have that money, but so that the money can be preserved for legitimate claims.
THE COURT: Your proposal in your material is it would ultimately wind up with the State being in position to having to make that claim, because you want the State to pay for the lawyer and then have a claim against the funds.
I was self-represented on the Rowbotham hearing. Originally I brought an application seeking to obtain access to the funds that were frozen by the Ontario Securities Commission pursuant to s.126 of the Securities Act on the basis that he should be able to access those funds for the purpose of preparing his defence. In particular, he claimed that he had a $200,000 claim in relation to the money that was frozen. Ultimately, counsel for the Ontario Securities Commission (Mr. Hutchison) appeared to oppose my request. The proceeding transformed into a Rowbotham application on the basis that whether the Applicant wanted to access those funds or arrange for state funded counsel, he would need to satisfy the court that he was without means to fund counsel.
In the case of CIBC v. Credit Valley Institute of Business and Technology 2003 CanLII 12916 (ON SC): the purpose of the Mareva injunction is a limited one. It is meant to restrain a defendant from taking unusual steps to put his assets beyond the reach of the plaintiff in order to thwart any judgment the plaintiff might eventually obtain. It is not meant to give the plaintiff any priority over other creditors of the defendant, nor to prevent the defendant from carrying on business in the usual course and paying other creditors. The nature of the Mareva is such that it is typically sought and granted, in the first instance, without notice to the defendant, but then is subject to a motion by the defendant to vary the injunction to permit payments in the usual course of business or living. As was noted by the English Queen’s Bench in Iraqi Minister of Defence v. Arcepey Shipping Co. S.A., [1980] 2 W.L.R 480 at 485-486:
IV - ORDER REQUESTED
It is respectfully submitted that the Court should order stay or set aside of order of Justice Miller and grant our appeal, the entire sales proceeds or equity should be given to the appellants before Toronto Dominion Bank and other creditors, order all monies unlawful seized by all the lawyers for the plaintiff and Canadian investors class and the creditors be returned to the appellants so that the appellants can retain counsel for us and our family for a trial, and put our lives and house in order and for the costs, the appellants will deal with all claims of the creditors in due course and reasonableness and fair to everybody.
In alternative, It is respectfully submitted that the Court should order a comprehensive trial
ALL OF WHICH is respectfully submitted this 2nd day of October, 2017.
Weizhen Tang
17 Silk Court
Richmond Hill
Ontario, L4B 4A4
Tel: (416)886-8715
Self -Represented
Certificate of Estimation of Time
(i) That an order under subrule 61.09(2) has been obtained or is not required, and
(ii) The Appellants will require 60 min for oral argument.
Schedule A - Authorities to be Cited
1. Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, [2003] O.J. No. 40 (S.C.J.)
3. R. v. Rowbotham (1985), 41 C.C.C. (3d) (Ont.C.A.)
4.. R. v. Nason, 2014 ABPC 33
The recent decision of the Alberta Provincial Court in R. v. Nason has the potential to expand the availability of Rowbotham orders. In Nason, the defendant is charged with provincial or regulatory Securities Act offences. If convicted, he is exposed to substantial fines and the risk of incarceration. On February 14, the trial judge accepted the defendant’s argument that, in order to obtain a fair trial, he required the assistance of a specialized securities lawyer (just not a “criminal lawyer”) at a cost that could be $50,000. He stayed the prosecution until state funding is paid into the securities lawyer’s trust account for the defence of the defendant.
5. R . v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont.C.A.)
The Supreme Court of Canada has directed the Court of Appeal to carry out its duty to ensure that the appellant had a fair trial and if not to act decisively to reverse any unfairness: R. v. Caccamo (1975) 21 C.C.C (2nd) 257 at p. 265 (Spence J); R.v. C (M.H) (1991), 63 C.C.C (3d) 385 at p. 394. (McLachlin J. as she then was).
6. R. v. Kelly (1992) 15 W.C.B. (2d) 254 (O.C.A.)
The incompetence of trial counsel can afford a ground of appeal. It is, however, one which should be raised only after the most careful consideration. There is a strong presumption that trial counsel perform adequately and the onus rests on the appellant to demonstrate that counsel’s conduct fell below the standard of competence.
7. Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R.R.
Schedule B
Not applicable