唐炜臻跟大律师行的针锋相对（英文）

唐炜臻 · 发表于 2015-12-11 22:53:37

CourtFile No. CV-09-8184-CL

ONTARIO SUPERIOR COURT OF JUSTICE

(COMMERCIAL LIST)

BETWEEN:

TOM TONG, RECEIVER FOR WINWIN CAPITAL MANAGEMENT, LLC,WININ CAPITAL LIMITED PARTNERSHIP, J.O.R. & ASSOCIATES, LLC, WINWIN CAPITALPARTNERSHIP, LP, AND BLUEJAY INVESTMENT, LLC., D/B/A VINTAGE INTERNATIONALINVESTMENT , LLC

Applicants

-and-

OVERSEA CHINESE FUND LIMITED PARTNERSHIP AND WEIZHENTANG &ASSOCIATES INC., WEIZHEN TANG CORP. AND WEIZHEN TANG

Respondents

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RESPONDENT’S FACTUM ANDAFFIDAVITTO INTRODUCE FRESH EVIDENCE

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Weizhen Tang

17 Silk Court

Richmond Hill

Ontario,

L4B 4A4

Tel: (416)886-8715

Fax: 9416)596-2598

Self represented

GOWLING LAFLEURHENDERSON LLP

BARRISTER & SOLICITORS

SUITE 1600, 1 FIRST CANADIANPLACE

100 King Street West

Toronto, Ontario M5X 1G5

KELLEY MCKINNON LSUC No.33193C

ALEX ZAVAGLIA LUSC. No.57622J

Tel: 416 369-7298; Fax: 416-862-7661

[email protected]

Representative Counsel forthe Canadian Investor Class

AND TO:

STOCKWOODS LLP
Barristers
TD North Tower, 77 King Street West, Suite 4130, P.O. Box 140
Toronto-Dominion Centre
Toronto, Ontario, Canada M5K 1H1
Direct: (416)593-2487 | Fax: (416) 593-9345 , Mobile: (416) 319-4440

Email: [email protected]

For Ontario Securities Commission

AND TO:

Mr. SIYI QIU AND GUOSHENGWANG

416-837-9129

EMAIL: [email protected]

SELF REPRESENTED

AND TO:

BENNETT JONES LLP

BARRISTERS AND SOLICITORS

1 FIRST CANADIAN PLACE

SUITE 3400, TORONTO

ONTARIO M5X1A4

LINCOLIN CAYLOR/MAUREEN WARD

TEL: 416-863-1716

Lawyers for the Receiver, TomTong

INDEX

Table of Contents

FACTUM... 1

PART I : STATEMENT OF THE CASE.. 1

PART II -ISSUES AND THE LAW... 2

PARTIII: ADDITIONAL ISSUES. 12

IV - ORDER REQUESTED.. 13

Schedule A - Authorities to be Cited. 14

Affidavitof Weizhen Tang. 17

FACTUM PART I : STATEMENT OF THE CASE

1. This is additional response tothe applicants’ application for an order for the release of the respondent’smoney that is held in a frozen account for their legal fees and not fordistribution to the respondent who owns the money or to the investors.

2. There is an order from JusticePepall who stated clearly that the frozen money was to be given on a pro ratabasis to the respondent and the investors after the conclusion of the criminalcase.

3. The criminal law is not concluded as it has beenappealed to the Supreme Court of Canada.

- Affidavit of the Applicant.

4. That there are new issues thathave arisen that have never been adjudicated and therefore no issues of estoppels arise.

5. This factum builds on what hasalready been submitted to the Court and served on the applicants in theprevious factum.

6. That the new and updatedaffidavit raises the new issues in the first several paragraphs of theaffidavit.

7. That the most significant newissues are the fact that the respondent did not have an interpreter in all hisappearances in the civil matter and therefore did not get a fair hearing as hisEnglish language skills both in speaking and writing, leave a lot to bedesired.

8. The second significant newissue is the conflict of interest involving counsel for Gowlings who was working for the OSC during theinvestigation and prosecution of the respondent and her working relationshipwith the person who charged him.

9. The issues relating to theconflict of interest involving Kelly McKinnon and the lwa firm that she workswith are dealt with in the new affidavit.

10. That it has to be rememberedthat OSC froze the respondent’s accounts, disabling him from hiring counsel andthis disability directly benefitted Kelly McKinnon and her law firm and it isalso to be noted that Kelly McKinnon still works for the OSC that froze theaccounts.

11. That the OSC froze the accountsto benefit the investors and in fact there is a court order to that effect butby claiming the frozen money for herself and her law firm, Kelly McKinnon andher law firm are in a conflict of interest position.

12. There is also an issue ofreasonable apprehension of bias here.

13. That Kelly McKinnon’slaw firm is also representing TD Canada Trust and there this same law firm hasclaimed legal fees from my equity instead of being paid by their client.,another conflict of interest, reasonable apprehension of bias and the course ofconduct to destroy the respondent financially in any every which way.

14, That these and otherissues have not been litigated at all or fully.

15. The two law firms have alreadytaken a chunk of the money for themselves to the tune of close to half amillion dollars from the Canadian and US accounts involving the respondent,even before the final conclusion of the criminal case and for themselvesinstead of the respondent or the investors.

- Affidavit of Applicant

16. The respondent had asked for accessto the funds so that he could retain counsel both at the OSC and criminalcourts as he had no legal knowledge about the law or legal process.

- Affidavit of Applicant.

17. The OSC, the crown attorneys and Legal Aid Ontario teamed up toprevent the respondent from accessing his money to retain counsel or tobe funded by the State in order to retain counsel. It is as a result of not having counsel thatenabled the orders in the civil matters to be issued as perhaps if he hadcounsel, the orders or some of the orders would not have been issued.

- Affidavit of the Applicant.

18. The respondent was not representedby counsel or was not present or was in prison when all the proceedings in theOSC that led to the various orders took place.

- Affidavit of the Applicant.

19. The respondent is seeking leave tointroduce new evidence on this motion.

20. The respondent as can be seen fromhis affidavit, did not understand the process in the civil or criminal trial atall.

21. The respondent was clearlyincompetent and ineffective in his self-representation both in the civil andcriminal matters and the civil matters were never resolved on the merits afterfull knowledgeable representation.

- Affidavit of Applicant.

22. The Applicant is on welfare andcannot afford to retain counsel even for this proceeding and he is trying toput his best foot forward.

- Affidavit of Applicant.

23. The Applicant is self representedon this leave to introduce fresh evidence and to argue the motion.

唐炜臻 · 发表于 2015-12-11 22:55:42

PART II -ISSUES AND THE LAW

24. 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 respondent to retain counsel or to wait until the final conclusion of the case at the Supreme Court of Canada as per Justice Pepall’s order.
25.          It is submitted that new issues have been raised as can be seen from the affidavit, therefore the issue of the various forms of estoppels do not arise.
26.          The issue of interpretation is a constitutional issue which needs full adjudication and not technical avoidance.
27.          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.
28.          The balance of the factum contains what has already been pleaded.
29.          It is submitted that the respondent did not get a fair hearing in the civil courts pertaining to the issue of the frozen accounts and the involvement of the two law firms because he had no legal representation, the  respondent was clearly incompetent and ineffective and had no Amicus curiea in the civil matters  as there is no provision in the law for that.
30.                      That the respondent  was denied his right to a fair trial 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.

31. 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.
32.          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).
33.          That this case comes under the rubric or colour of right of “in other circumstances” or Intertests of justice umbrella, as the respondent did not have counsel throughout the process.
34.          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] O.J 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.
35. 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.
36.  As the respondent’s affidavit shows, the respondent was not effective both in the civil and criminal process to his prejudice and severe consequences, just because he did not have counsel.
37.  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.
38. 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)
39. 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.
40.  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.
41.       The respondent 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.

42. 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
43. 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:

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

(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

44. Counsel’s performance is to be measured against a standard of reasonableness, assessed objectively.  Strategic or tactical considerations will be given considerable deference to trial counsel.  Each case is to be decided on the facts. Here the Applicant was self-represented and was clearly incompetent as was Amicus Curiea who wasn’t his counsel but was there to assist in any case.
45. In R. v. Joanisse (1995) 102 C.C.C. (3d) 35 (OCA) and R. v. White (1997) 114 CCC (3d) 225 (OCA), the court decided that the steps to establish ineffectiveness of counsel are:

1) The appellant must establish the facts on which the claim of incompetence is based.  The appellant must prove on the balance of probabilities the alleged acts or omissions of trial counsel.  When the claim of incompetence is first raised, appellate court will receive fresh evidence supporting the factual foundation of the claim.  Additional information should include (in either affidavit or transcript of oral evidence) trial counsel’s explanation for the alleged deficiencies.

2) The appellant must establish that the representation provided by trial counsel was incompetent.  Appellant must show that acts/omissions of trial counsel were unreasonable and fell below existing professional standards of reasonable skill and judgment (see Rules of Professional Conduct)

3) The appellant must establish that the incompetent representation resulted in a miscarriage of justice.  An appellant establishes prejudice by showing that there is a reasonable probability the verdict would have been different if trial counsel had not been incompetent.

- R. v. Joanisse (1995), 102 C.C.C. (3d) 35
- R. v.  White (1997), 114 C.C.C. (3d) 225

唐炜臻 · 发表于 2015-12-11 22:56:17

46. In Garofoli Martin J.A. said at pp. 151-2 (quoted with approval in R. v. Sauve (1997) 121 C.C.C. (3d) 225 (B.C. C.A.):

“...where the defendant alleges that the incompetence of counsel deprived him of the effective assistance of counsel, the defendant must show, in addition to the lack of competence on the part of defense counsel, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different.  In Strickland v. Washington, 104 S. Ct. 2052 (1984), Justice O’Connor, delivering the opinion of the Court, said at p. 2064:

‘a convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.  First, the defendant must show that counsel’s performance was deficient.  This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.  Second, the defendant must show that the deficient performance prejudiced the defense.  This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.  Unless a defendant makes both showings, it cannot be said that the conviction or death sentence results from a breakdown in the adversary process that renders the result unreliable.’
(Emphasis [of Macfarlane J.A.])
. . . .
“She also said at p.2068"

‘...The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.
(Emphasis [of Macfarlane J.A.])

“The principle set forth in Strickland v. Washington, supra, can usefully be applied in this jurisdiction.”

- Garofoli supra.

47. In Joanisse, J.A. Doherty states at p.64 that “ a reasonable probability lies somewhere between a mere possibility and a likelihood.”
- Joanisse supra
- R. v. Sauve (1997), 121 C.C.C. (3d) 225
48. In R. v. B. (L.C.) (1996) 104 CCC (3d) 353 (O.C.A.), the court also quoted from Strickland above at p. 2066:
A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.  The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.  In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.  At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

- R. v. B(L.C.) (1996), 104 C.C.C. (3d) 353

49. The deference to be shown in an examination of counsel’s performance referred to in R. v. Kelly (1992) 15 W.C.B. (2d) 254 (O.C.A.) where Doherty J.A. said (quoted with approval in Strauss (1995) 100 C.C.C. (3d) 303 (B.C. 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.

- R. v. Kelly (1992), 15 W.C.B. (2d) 254

50. In R. v. Joanisse (1995) 102 CCC (3d) at 62 (OCA); the court reasoned that:

Counsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction.  The ultimate purpose of the appellate inquiry is not to grade counsel’s performance, but to determine whether a miscarriage of justice occurred...If counsel’s incompetence rendered the verdict unreliable or the process unfair, then the appellant has demonstrated that he received ineffective assistance resulting in a denial of the right to a fair trial and miscarriage of justice.

51. 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.

52. It is submitted that the combination of both the incompetence and ineffectiveness of the self represented applicant and Amicus, resulted in an unfair trial and therefore a miscarriage of justice.  The Chief Justices of the Supreme Court of Canada and Ontario, as well as many other judges and former Chief Justice and Attorney General for Ontario, Honourable Roy MacMurtry have stated that self represented applicants are the face of new injustices in Canada or words to that effect that they present a new and intractable problem for both the civil and  criminal justice systems. The issue of self represented applicants and the specific problems they pose is an issue of national importance.
53. 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.

54. 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).

55.       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”.

56.       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 applicant’s 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”.

57.          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.

58.             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.

59.          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.

60. 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.  The question is can it be received?

61. S. 683(1) of the Criminal Code states that an appeal court can receive evidence if it is in the interests of justice to do so.  If evidence offered is:

1. With respect to an issue relevant to a determination made at trial, the test set out in R. v. Palmer (1979) 50 C.C.C. (2d) 193 (SCC) and reiterated in Stolar v. The Queen (1988) 40 C.C.C. (3d) 1 is to be followed.

2. Fresh evidence directed to an issue not litigated at trial: The court has jurisdiction to entertain both arguments, as it is in the interests of justice that the Appellant be given an opportunity to adduce fresh evidence to support his/her claim.  The use of the approach from R. v. W.(W.) (1995) 100 CCC (3d) 225 (OCA) is recommended.

- R. v. W (W) (1995), 35 OR. (3d) 782

62.       However, in cases where the allegation is incompetence of counsel, and therefore a miscarriage of justice,  there generally is no need for fresh evidence.

PART III:  ADDITIONAL ISSUES

63. The Honourable Court is requested to consider and admit fresh evidence.

唐炜臻 · 发表于 2015-12-11 22:56:56

IV - ORDER REQUESTED

64. It is respectfully submitted that the Court should dismiss the applicants’ applications, must order the return of the money to the respondent, order that the money frozen must be given back to the respondent or in the alternative  defer the decision to the conclusion of the Supreme Court  of Canada process or in the further alternative set aside or vary or modify previous orders and have the process start all over again as the respondent was not represented on the merits that resulted in previous orders pertaining  to the monies in question and or for any just order based on the judicial exercise of discretion.
ALL OF WHICH is respectfully submitted this  11th day of  December, 2015.

                                                                                                      Weizhen Tang                                                                                                                                        17 Silk Court
                                                                                                         Richmond Hill
                                                                                                         Ontario, L4B 4A4
                                                                                                      Tel: (416)886-8715

Self -Represented  respondent

Schedule A - Authorities to be Cited
.
               R . v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont.C.A.)
R. v. Garofoli (1988), 41 C.C.C.(3d) 97 (Ont. C.A.)
R.v. Joanisse (1995), 102 C.C.C.(3d) 35 (Ont C.A.)
R. v. White (1997) 114 C.C.C. (3d) 225 (Ont. C.A.)
R.v. Sauve (1997), 121 C.C.C.(3d) 225 (B.C. C.A.)
R.v. B. (L.C.) (1996), 104 C.C.C. (3d) 353 (Ont.C.A.)
R. v. W. (W.) (1995) 100 C.C.C. (3d) 225 (Ont. C.A.)

唐炜臻 · 发表于 2015-12-11 22:58:04

Court  File No.CV-09-8184-CL

ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)

Between

TOM TONG,RECEIVER FOR WINWIN CAPITAL MANAGEMENT, LLC, WINWIN CAPITAL LIMITED PARTNERSHIP, J.O.R. & ASSOCIATES,LLC, WINWIN CAPITAL PARTNERS,LP AND BLUEJAY INVESTMENT,LLC, D/B/A VINTAGE INTERNATIONAL INVESTMENT, LLC Applicants

And

OVERSEA CHINESE FUND LIMITED PARTNERSHIP, WEIZHEN TANG AND ASSOCIATES INC., WEIZHEN TANG CORP. AND WEIZHEN TANG      Respondent s

AFFIDAVIT of WEIZHEN TANG to ADDUCE FRESH EVIDENCE

Weizhen Tang The self represented,
17 Silk Court
Richmond Hill
Ontario  L4B 4A4
Tel: (416) 886-8715
Fax: (416) 596-2598

GOWLING LAFLEUR HENDERSON  LLP
BARRISTER & SOLICITORS
SUITE 1600, 1 FIRST CANADIAN PLACE
100 King Street West
Toronto, Ontario M5X 1G5

KELLEY MCKINNON LSUC No. 33193C
ALEX ZAVAGLIA LUSC. No. 57622J
Tel: 416 369-7298; Fax: 416-862-7661
[email protected]
Representative Counsel for the Canadian Investor Class

AND TO:

STOCKWOODS LLP
Barristers
TD North Tower, 77 King Street West
Suite 4130, P.O. Box 140
Toronto-Dominion Centre
Toronto, Ontario, Canada M5K 1H1
Direct: (416) 593-2487 |  Fax:  (416) 593-9345 , Mobile:  (416) 319-4440
Email: [email protected]
For Ontario Securities Commission

AND TO:

Mr. SIYI QIU AND GUOSHENG WANG
416-837-9129
EMAIL: [email protected]
SELF REPRESENTED

AND TO:

BENNETT JONES LLP
BARRISTERS AND SOLICITORS
1 FIRST CANADIAN PLACE
SUITE 3400, TORONTO
ONTARIO M5X 1A4
LINCOLIN CAYLOR/MAUREEN WARD
TEL: 416-863-1716
Lawyers for the Receiver, Tom Tong



Affidavit of Weizhen Tang

I, Weizhen Tang, of the city of Richmond Hill, the Province of Ontario, MAKE OATH AND SAY:

1.    I am one of the respondents in this matter and as such, I have full knowledge of the matters sworn to in this affidavit and where I have no direct knowledge I state so and so verily believe what is stated is the truth.
2. I am currently 57 years old. I was born on September 2, 1958. I am a Canadian citizen. I have been a Canadian Citizen for the past 18 years and I have called Canada my home for 23 years, started my own business since 1995.
3. I am a self-taught businessman and working for the public and public interest, no harm to the public, I became a public figure and one of the most well known Chinese community leaders because of my hard working, leadership and good character.  Until the conviction for one count of fraud on October 30th, 2012, I had no prior criminal record.
4. This affidavit builds on the affidavit already filed in Court and served on the applicants. See affidavit sworn on December 7th,2015.
5. This affidavit relies on what has already been provided in the previous affidavit on which this one builds.
6. This affidavit answers some of the issues raised by the applicants in their submissions of December 8th, 2015.
7. This affidavit further raises some new issues which had not been litigated before.
8. That all the issues previously raised had never been fully litigated; for example during any of my appearances, I was never represented by counsel.
9. The issue of representation by counsel while raised before, had never been fully adjudicated on in terms of judicial assessment after evidence had been called on my legal incapacity and a judge making a reasoned decision, with rational as to why I needed or did not need counsel. The issue of counsel is outstanding.
10. That the issue of the frozen funds and how that affected my ability to defend the legal suits and motions brought by the applicants  was never fully adjudicated.
11. The issue of why investors’ money that was ordered to be returned to the investors on a pro rata format but now the law firms are claiming it for themselves without reference to the interests of the investors, has never been adjudicated.
12. The issue of why the law firm’s legal fees must come from the frozen funds ( and not from those who hired or appointed the law firm )which I need for counsel, has never  been adjudicated.
13. The issue of lack of counsel is a constitutional issue as it raises issues of fair hearing or trial on these complicated legal issues and requiring a section 24(1) remedy under the Canadian Charter of rights and freedoms.
14. That while these proceedings were taking place, I was incarcerated and it is difficult if not impossible to mount a successful response to completed motions or applications, therefore raising the common law issues of principles of natural justice, fairness, procedural fairness and section 7 of the charter because at the time my life, liberty and security of the person were at stake and constrained because I was in jail and that issue had never been litigated on.
15. That a totally new issue has arisen and that is, when I appeared before the various judges, I had no interpreter and everyone knows that my English is not perfect, that my pleadings are not perfect and I have been told severally that my pleadings don’t make sense and they are so confused that it is easier to just dismiss them out of hand and that is why during the criminal trial, there was an interpreter because it was obvious I needed one just as I needed one during the various appearances in civil court.
16. The issue of proceeding without any interpreter raises a new constitutional issue which has never been adjudicated on.
17. That anybody who appeared or was present during those proceedings or has a copy of the transcripts and further, has a copy of my pleadings so far, will tell that my English language skills leave a lot to be desired.
18. That the issue of interpretation raises the issue of fair hearing and the ability to follow and understand the proceedings.
19. That the combination of lack of counsel and lack of interpretation affected my ability to properly prosecute the case.
20. The lack of counsel was caused by the freezing of my accounts by the OSC.
21. The lack of funds because they were frozen by the OSC also disabled me from hiring a court qualified interpreter as the courts and tribunals never hired one for me despite the obvious evidence from my participation and pleadings that I had a severe disability in the English language.
22. That in fact there is a comment in the factum of the applicant counsel that I told the court that “I know the facts. I don’t need to perfect anything”
23. That I didn’t know what perfection means as I thought it simply means the facts.

唐炜臻 · 发表于 2015-12-11 22:59:09

24. There is another issue that is totally new that has never been litigated on.
25. The issue is that counsel for the applicants, Kelly Mckinnon is in a serious conflict of interest, in fact the law firm as a whole is in a serious conflict of interest.
26. That Kelly McKinnon was Deputy Director of Enforcement at the Ontario Securities Commission during my litigation dispute with them, in fact during their investigation of my companies and is currently a member of the Ontario Securities  Enforcement Advisory Committee.
27. That Kelly McKinnon was working  with or knew Matthew Boswell who also worked at the OSC and was responsible for laying the OSC charges that had been investigated by the Enforcement branch when Kelly McKinnon was working there.
28. That the OSC claimed that they were protecting the interests of the investors while in fact the very firm Kelly is working for is only interested in taking the money that is supposed to go to me and the investors on a pro rata basis.
29. That Kelly is still associated actively with the OSC that is supposed to protect the interests of the investors but she and her law firm have taken the investors’ and my money.
30. That Kelly McKinnon and her law firm should have recused or excluded their law firm from being appointed class representatives because of the above-noted conflict of interest.
31. That it is possible that Kelly McKinnon knew that her law firm will be appointed and stood to benefit from the freezing of my accounts and further that those frozen accounts would be claimed by her law firm as legal fees.
32. That it is possible that Kelly McKinnon worked hand in hand with Matthew Boswell in the case at hand.
33. That I am told that this conflict of interests where McKinnon and her law firm stand to benefit raises a reasonable apprehension of bias that the process was rigged so that Kelly McKinnon and her law firm could benefit this way and may be benefitting from numerous other similar or like cases.
34. That I am told that reasonable apprehension of bias need not be made out in actually, it merely needs to be shown to be a possibility, a strong one in this case.
35. That it is the same with conflict of interest. Here, McKinnon was working in the investigation and enforcement unit when my companies and I were being inverstigated and shortly  my accounts were frozen and I was charged, further McKinnon still works partly for OSC, the very agency that froze my accounts and charged me and Mckinnon is representing the class of investors whose money she and her law firm have claimed.
36. That the issue of conflict of interest and reasonable apprehension of bias issues have never been raised and adjudicated.
37. There is even another new issue with respect to the law firm representing the class of investors, it is the same law firm that is taking my money as legal and other fess from the TD Canada Trust case ( Court File no. 453/13).
38. That this law firm is involved in a cesspool of conflict of interests, double dealing and is out to destroy me financially and in every way.
39. That this last issue has never been adjudicated.
40. The rest of the affidavit shows a connection to all civil cases and criminal proceedings and how the freezing of my accounts by OSC at which McKinnon worked and still works in addition to Gowlings started it all and have destroyed my life.
41. This affidavit is in support of my response to the applicants’ motions as well as to adduce extra and fresh evidence which was not litigated at or fully or even partially at the various courts and before different judges, though some issues were mentioned throughout the process.
42. That the overriding and consistent issue that I raised both before the Ontario Securities Commission and the Criminal Courts (Preliminary Hearing at Provincial Court, various Motions and Applications in Superior Court on the Rowbotham issue, at the Trial proper in Superior Court of Justice, in the Court of Appeal for Ontario and now in the Supreme Court of Canada) is that I needed counsel to represent me as I was not a lawyer and had no legal knowledge.
43. That for example in the Motion Record of the Gowlings lawyers, they attach at Tab “J” my Statement of Claim where at Paragraph 5 I state “The plaintiff is not a lawyer and do not  know the law the counsel talk about and the process, how can the plaintiff abuse the process”...
44. That in Tab “K” which is in the Motion Record of Gowlings, they attach a copy of my letter to Crown Attorney John Pearson where at paragraph 2, I state clearly that “I did not have a lawyer as you know because the authorities or malicious institutions such as OSC, police, and the crown made it. I had money legal, nothing is illegal or commingle, but I could not use it for my defence. It either has  frozen by OSC or taken by lawyers whom I do not know and who do not work for me because of the abuse of the courts in Canada or USA, those are legal robbery”.
45. That it can even be seen when you read these two documents that I don’t have the lawyer’s language or civility or politiness as I read it now, the pleading is not effective.
46. That in my Motion Record responding to this Motion, at Tab 6, I attach some transcripts, including the one produced for the August 15th, 2011 before Justice Nordheimer where the OSC counsel realises that I was not an effective self represented person when he told the judge that “Because in the context of an application like this, where people come to court, the issues are ill-defined, --- again, I  don’t  say this critically of Mr. Tang, but in support  of the need  for fairness to everybody. The issues are ill-defined”. (p16 of the transcript but p. 126 of Tab 6)
47. That despite my insistence on my need to have counsel as Justice Nordheimer understood and quoted me as saying at page 13 of said transcript and page 123 of Tab 6 that ‘ 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 agency has frozen it.
48. That at the OSC hearings on any given issue except when I thought the merits of the OSC charges would be litigated, I had no lawyer because the money for such was frozen, even before the charges were laid and the lawyer who would have defended me on the merits of the charges left after I had already paid him  and the case was transferred by the OSC to the criminal courts.
49. That I had no lawyer to prevent the hiring of counsel from Gowlings who would represent investors when investors themselves never hired this law firm.
50. That when the proceeding to freeze my account took place, I had no lawyer and no understanding of the implications of what was going on except to state that I needed a lawyer.
51. That of all the orders that were initially issued, including the freezing of the funds and the assignment of the case to Gowlings, I didn’t even know one could appeal or where to appeal but I stated all the way that I needed counsel.
52. That I knew one fact and that fact was that on February 27th, 2009, an investors ‘ meeting was held where I informed everybody that there was only $1400.00 in the account and the investors understood that there was no more investors’ money remaining and later I raised my own money of $200,000 from my line of credit and two other people raised some money to continue trading.
53. Thus when the OSC froze my account, they knew the money was my money.
54. That counsel for the OSC despite knowing that that was my own money, insisted on it being frozen and not given to me to retain counsel both at the OSC or at the criminal trial.
55. That the crown joined the OSC lawyer in making submissions that I was not entitled to that money and opposed the Rowbotham application along with Legal Aid Ontario.
56. That in fact, I was fighting alone to get money for OSC and criminal cases against the joint opposition of the OSC, the crown and Legal Aid Ontario.
57. That in the criminal case, Justice Nordheimer found as a fact the following  on Tab 6 page 12 (page 121 of Tab) “I am faced with an unrepresented accused facing serious criminal charges in a fairly complicated proceeding...” the rest has been quoted above.
58. That I never had counsel at any time either at the OSC or criminal trial and I believe that if I had counsel I would have faired better in both tribunals.
59. That the reason I did not have counsel in both tribunals is because the OSC froze my money.
60. That  to show that I had no understanding of the legal process at I refer you to factum of Gowlings on appeal file No. C58107 (M43810) where counsel quotes me at paragraph 22 as saying, “I know all the facts. I can argue in court without perfecting”.
61. That at that time, I had no idea that facts and perfecting were different, that I really need counsel and the lawyers, the judges and other players knew I had no clue about law and the legal process.
62. That however, I knew the facts which were, (1) the investors money as of February 27th, 2009 was only $1400.00, and (2) I had gotten $200,000 from my line of credit and I wanted to use  to use this money for legal defence but it was frozen.
63. That Justice Pepall issued an order that the frozen money should be given back to the investors on a pro rata basis after the criminal trial.
64. That however, technically, the criminal case is not over because the case has been appealed to the Supreme Court of Canada, one of the grounds as this affidavit discusses in paragraphs below and one of the grounds for seeking leave in the Supreme Court is on the issue of denial of counsel.
65. That however, before the criminal trial was over, lawyers started applying to get at the money which purportedly was for the investors .
66. That allegedly section 126(1) of the securities Act was invoked to safeguard the investors money but that is not what this application is all about, it is for the lawyers from Gowling and Bennett Jones to take away all the money for themselves, including my own money.
67. That Gowlings has already taken over $200,000 and now they want $80,000.
68. That Bennett Jones has already also taken over $200,000 from my US investments.
69. That not one penny has been or will be reserved for the investors.
70. That the actions of the law firms involved here is contrary to the order of Justice Pepall.
71. That I still have no lawyer to help me recoup the money these law firms have taken, which is my money and rightfully belongs to me.
72. That the law firms should be paid by the people who hired them, if any and must not go after my own money which I had needed in any case for my OSC and criminal charges, which monies they blocked me from accessing.
73. That it appears now that they had an eye to keep this money for themselves and not for the investors.
74. That all the pleadings now before this court is for lawyers fees from my money and it is no longer litigated to benefit the investors as had been the spirit of the Pepall judgment which in case was issued without me being represented.
75. That I am now asking the Honourable Court to exercise its discretion to restart the case over.
76. That in the alternative in the interests of justice, the money should all be given back to me and the law firms should get their money from whomever hired them.
77. That if my appeal at the Supreme Court of Canada fails, there is a sentence that I have to fulfill which is a fine in lieu of forfeiture and in that case the investors are being looked after.
78. The lawyers have not looked after the interests of the investors at all.
79. The OSC and criminal cases were connected and they are connected.
80. That the running thread is the freezing of my account which disabled me from retaining counsel and to make full answer and defence.
81. That it is the OSC in essence that by freezing my account and disabling me from retaining counsel, caused me to be convicted as I had no counsel.
82. That the fact that the monies are being claimed by law firms rather than by the investors was caused by the OSC.
83. That because of the freezing of my account by OSC, and the refusal of Legal Aid to fund counsel, I ended up being incompetently and infectually represented by an Amicus Curiea.
84. That because of the connection between the OSC and criminal cases, the rest of the affidavit deals with the grounds for appeal to the Supreme Court of Canada and to show that the case is not over and the issue of legal representation is the running thread, a thread which started at the OSC.
85. That the balance of the affidavit  answers some of the statements made by the Justices in the Superior Court of Justice and in the Court of Appeal which have so far not be answered or explained.
86. The core or essence of my conviction I believe related to my being self represented and without much or any legal knowledge at all and the courts have down played this reality and I am hoping the Supreme Court of Canada Justices will take a fresh look at this critical area of national importance, how a self represented applicant without any legal knowledge as the Judges at the Preliminary Hearing and Trial clearly and repeatedly stated, a self represented in a complex area of law involving fraud in a financial investment field during the most extensive collapse of the financial service and trading industry since the great depression of the late 1920s and early thirties.

唐炜臻 · 发表于 2015-12-11 23:00:29

87. This affidavit also deals with the incompetence of the Amicus Curiea who was assigned to help me during the course of the trial. I will specify the areas where he was clearly incompetent and his incompetence contributed to my conviction.
88. The affidavit also deals with my belief that the crown’s expert witness was qualified as an expert by stealth because I was self represented without legal knowledge to challenge his qualification at the Preliminary Hearing and at the Trial, the Amicus because of incompetence conceded that he should be qualified when if the Amicus had read the Preliminary hearing transcript, he could have discovered that the Expert had never been qualified to testify as an expert in this area and that the Preliminary Hearing Judge expressed reservations about qualifying him, entrusting the correction to be made by my cross-examination even though the Judge knew and expressed that I had no legal knowledge and did not know how to cross-examine let alone challenge the incompetence and lack of qualification of the tendered expert. The Transcript of the Preliminary Hearing transcript on this point should be made available.
89. I sincerely believe that the testimony of the expert witness contributed to my conviction because he did not analyse my personal bank deposits which showed money going out to the investors. He only analysed monies deposited into my personal accounts thereby concluding that it was for personal use. He also never analysed how much of my personal money went to pay the investors.
90. That Amicus never seriously pursued the incompleteness, incompetence, deliberate omission of the data by the expert, that would have helped my case.
91. The I believe that Amicus also did or did not do many things that a competent lawyer fully applying himself would have perceived and attempted or would have done.
92. The Ontario Securities Commission charged me with securities charges in July 2009 before they even finished their investigation or without having issued any report at all. The report was only completed in July of 2010. The issuer of the report was both an investigator and an expert at the trial and that aspect has already been dealt with in the factum of Duty Counsel at the Court of Appeal and I will rely on that Factum as well in this court.
93. That a big issue arose that I had money to retain counsel from time to time and therefore the courts stated I still had money to retain counsel for the trial.
94. That the fact of the matter is that at the time that the OSC laid charges against me, I still could access some money but once the OSC froze all my money, I no longer had access to any money at all.
95. The OSC then passed the buck to the police to charge me which happened in October 2009 and by that time I was short of money if not without money at all.
96. That I was arrested in January 2010 and was bailed out in April 2010. After I was bailed out, I no longer had any money and therefore qualified to go on welfare.
97. That to qualify for welfare, I was subjected to a thorough investigation and after the financial investigation, I was qualified to be awarded welfare.
98. That I have not worked since 2009. My field was financial investment and I was ordered not to trade or contact my previous investors, further because I was so known in my community, once I was convicted, I cannot get a job.
99. My various applications for stated funded assistance was dismissed throughout on the basis that I was not truthful in relation to my financial affairs, but the truth is that I couldn’t access my money because the money was frozen, the funds I paid lawyers to represent me before the OSC was exhausted and I had to go on welfare. There was no other source of funding that I had.
100. That because I was denied state funded counsel, I was forced to be self represented and I believe that my lack of legal knowledge and my inability to effectively cross-examine and knock-out the tendered expert witness, partly contributed to my conviction.
101. My lack of legal knowledge and or lack of ability to cross-examine is displayed throughout the preliminary hearing transcript and trial. The examples follow.

唐炜臻 · 发表于 2015-12-11 23:01:17

102. On March 15, 2011 at page 14, Judge Libman warned me: “I am going to interject here. Mr. Tang, I Have been extending you some latitude appreciating that you are here on your own...”. “While I am mindful of the challenges that you to frame proper questions to him, I cannot at the same time allow you to convert the Preliminary Inquiry into argument with one of the investors.”
103. The Judge took over asking the witness the questions for several pages and when the table was turned to me, I only asked one question before the crown counsel Mr. Gattrell intervened and remarked at Page 17, on my lack of representation: “Okay. You know I haven’t objected because Mr. Tang is not represented and I didn’t want to curtail but...”.
104. That it was clear to me, to the Judge and to the crown that I didn’t know anything about the law.
105. The very next page, Page 18, when I was cross-examining the witness, the Judge cut me off: “I think that  I am not going to permit that. You ask relevant and proper questions. You have not heard a word I have told you...”. I then asked one question and the Judge on page 19, further cut in: “Mr. Tang, I am not permitting this. He is called about turning over the documents. I have told you three times...”. I had to abandon the cross-examination in frustration.
106. The above witness was only an ordinary witness. The heavy gun of the expert witness Mr. DeVerteuil was yet to be called and I had no lawyer and I didn’t know what qualifying an expert witness meant or even what questions to ask him. I needed a lawyer.
107. The crown attorney in seeking to qualify the expert itemised the areas he wanted him qualified but recognized my limitations by his stating the following on page 30: “So those are my questions with respect to his knowledge, background, and experience. I know we don’t have counsel on this side but I am going to stop there in case Mr. Tang has any questions on the issue of expertise”.
108. The Judge explained what the process involved and I knew from deepst in my heart that I did not know what the judge was talking about and I told him at page 32: “Thank you Your Honour, for asking me {if I understood} but as you can see that I do not really know how to ask questions in court. I cannot really do anything else. I don’t what is proper to ask. I am just afraid that I might ask the wrong question”. The Judge attempted further explanations and directed me to the areas I could ask.
109. I knew that his expert was claiming to be a forensic expert but I doubted that he was conversant in the areas of financial investments.
110. I told the Judge at page 33: “I was going to retain a forensic accountant for myself but I do not have the money to do so. This person’s name is Larry Lansfield”. I turned to the accountant: “Do you know this person?”
111. The Judge could tell that I had no clue about the process and he took over questioning the so-called expert. I didn’t know how to disqualify him and I simply told the judge at page 35, “We will let him testify first then”. That was putting the cart before the horse. An experienced lawyer would have disqualified him at the time.
112. The Judge took over the questioning from page 35 to page 48.
113. I believe that the judge established that the expert had never been qualified as an expert either at the OSC or any court of law, that he only testified once in a court of law as an investigator, that his institute doesn’t even allow for him to called a senior forensic accountant and he was equivocal about his real qualifications especially pertaining to continuing education. He had in fact testified in a court of law or OSC more than twenty years previously. He had merely prepared reports in the interim.
114. I told the Judge at page 50: “I feel that this particular gentleman might be just an accountant but not a forensic accountant”. I had no idea how to ask questions about his expertise. I needed counsel. In frustration without asking about qualifications and expertise, I simply stated: “That is all my questions”
115. That began a cascading route to what I believe to be a miscarriage of justice for my lack of legal representation.
116. After the crown had already led extensive evidence through the Expert, the Jdge told me and I think the Judge indulged the crown too much: At page 57 he stated “Mr. Tang, I gave the crown the opportunity to ask those additional questions because the witness was called by the crown. Some of the questions did not arise during the initial examination of the witness and they were in fact about the report...” I didn’t know I could object to the questions by the crown that did not arise from earlier testimony and the Judge did not stop the crown from asking improper questions knowing I was not represented and qualifying an expert witness was pivotal to the case.
117. I told the court at page 59 again, “ I don’t know how to ask this witness questions. I just wanted to bring out that the other forensic accountant I mentioned earlier, after examin[ing] this report, he said this report is a joke because if you are talking about tens of millions of dollars but then over here the result is that it is just that Mr. Tang has no money. There is no money found in him, so it’s a joke he said”.
118. Although the judge qualified the expert and I believe this was because I didn’t have counsel and legal know-how to knock him off, the Judge had misgivings as he stated at pages 64-65, “ I have been particularly mindful of the fact that one who is an employee of the commission, writes a document for the commission and does not attend programs on an ongoing basis that are put on by third parties may well be susceptible to tunnel vision and lack the needed objectivity in preparing the report before the court”.
119. It must be noted that this powerful obiter and or finding was not recognized by the Court of Appeal. In the Supreme Court of Canada, this must raise an issue of national importance whether such witnesses must be permitted to testify as expert witnesses.
120. The Judge allowed this witness to be qualified on the premise that  as he stated at page 65: “ However, on further reflection I am confident that these issues can be dealt with by means of subjecting the witness to cross-examination on the basis of his opinion evidence and, indeed Mr. Tang has adverted to this fact in comments that he has made in expressing his concerns about the witness testifying before me”.
121. The Judge knew my lack of knowledge in legal matters, he knew I had no or limited ability to cross-examination. He knew this would be a jury trial. So the judge let me to den of lions, as it were. The stage for a conviction was set in my belief.
122. On March 21, 2011 at page 48, in my utter confusion about what line to take in cross-examining the expert on his report, I told the Judge once again: “And since I have no lawyer I am not familiar with the court”.
123. That I made this statement after the Judge had angrily told me: “Would you stop making speeches to me and to the witness. And I am directing you again to ask him proper questions about the evidence...”.  The Judge knew I couldn’t ask proper questions. I had no legal knowledge. I am a lay person who is a businessman.
124. When I told the Judge that I have no lawyer, he went into a tirade at page 48: “All right Mr. Tang, I am going to tell you this again. I have heard enough from you about being without a lawyer and the position that you are in. You have just made a statement about his report being incomplete and you feel misleading. These are issues that you understand I would think better than anyone in the court given your familiarity with these documents. Ask him questions to help identify where you say his report is incomplete or misleading and stop giving us a lecture about your being here without a lawyer  and this dragging on and being hurt. You are in a court of law”.
125. I discovered that being knowledgeable in the investment field is not the same as having legal knowledge to ask questions about financial documents and their legal implications.
126. The Judge even proved that I couldn’t ask questions to the so-called expert even if I had knowledge in the investment field because at page 56, the Judge intervened: “Mr. Tang, let me see if I can help you put this in a form of a question...”
127. That down the same page, the judge states, “I think what Mr. Tang may be getting at is that ...”. Still further down the page the Judge states, “ I think the question may relate to the following, would you be able to show what the 515 plus amount and the $157,000 amount, what the money is actually used for and where it goes?”
128. In answer to the Judge’s request for clarification, the expert witness answered at page 56: “No, I am not. I have not analysed those amounts any further”.
129. That this answer was one of my contentions that the report was incomplete, misleading, biased and incompetent because had it been complete, it would have shown that I had no intention of committing fraud, that the monies were rerouted back to the investors.
130. The expert witness only analysed and entered data that was prejudicial to my case and defences but because I had no lawyer and had no legal knowledge and I still have no legal knowledge, I could not disqualify the expert.
131. When Peter Boushy was appointed as Amicus in August 2012, less than a month before the trial was to start, he only met me once before the trial started.
132. Peter told me clearly that he was not my lawyer and had very limited jurisdiction to assist me.
133. Peter told me that as Amicus, I cannot terminate his services. He is at the disposal of the Court as a friend of the Court.
134. Peter told me that I cannot issue him any instructions at all. He was not at my service. He is merely there to assist where needed.
135. Peter also told me that he cannot accept any documents from me but that he will only accept documents from the crown.
136. That Peter did not prepare me for my trial in whatever way at all.
137. That I met Peter every day in court when the court was sitting, and at no other time. We never prepared together during the weekend or otherwise.
138. There are many things which I asked Peter to do for me which he refused to do or advised me not to do.
139. Peter never took any documents from me that I recall. For example I wanted to give a list of character witnesses that should be called to testify on my behalf.
140. Peter told me that I do not need any character witness as good character is no defence and that I would simply annoy the Judge and prolong the trial.
141. That as a result of Peter’s refusal of me to call character witnesses, i never called any character witnesses on the basis of Peter’s advice.
142. I had a lot of character witnesses that wanted to testify on my behalf, including about three quarters of investors. Because of Peter’s advice, they were lost.
143. The character witnesses I believe would have convinced the jury that I am not the type of person to commit the offence of fraud, that I had the support of the investors who knew clearly the financial difficulties the economies were going through and that I had the ability to pay them as we went along. These investors even wanted me to continue investing for them.
144. Peter did not take documents regarding my theory of the defence.
145. Peter’s incompetence was more displayed in two crucial areas in my belief.
146. The first area related to the crown expert witness. It was clear that Peter never read the preliminary hearing transcript relating to the qualification of the expert witness.
147. That had Peter read that transcript, he would have seen that the expert was qualified by stealth, that he could have nipped him in the bud so that he wouldn’t be qualified as an expert at the trial in Superior Court.
148. That the preliminary hearing judge left a left of areas mapped up or out from which a competent lawyer would plough through to prevent the further qualification of this expert whose testimony prejudiced and biased my case.
149. That Peter would have seen that the whole report was written in support of the OSC and crown’s theory of the case for conviction.  That it was not objective.
150. That Peter could have delved into the expert’s lack of qualifications, his apparent bias which the Preliminary Inquiry Judge alluded to.
151. That I told Peter that he should challenge the expertise of the expert because in my estimation, the expert was merely an accountant as I told the judge at the preliminary hearing, but not a forensic expert, which if he was, he was certainly not an expert in financial investments. Peter did not challenge his qualifications.
152. That if Peter did not concede on his expertise, he would have severely damaged his credibility in spite of his possible eventual qualification as an expert.
153. That after the expert was qualified as an expert at trial, Peter never took time to take him through the mass of entries that the expert never took into account that would have supported my theory of the case that I didn’t intend to defraud any investor and that my companies channelled the money back to the investors and that I was trading and investing in brokerages and in currencies.

唐炜臻 · 发表于 2015-12-11 23:01:54

154. That Peter because he was not my lawyer was not thorough in cross-examining the expert or any expert.
155. That Peter to a great extent was more interested in not taking up any more court time, he was consumed in trying to please the judge and the crown, something that is prevalent if one reads the Pre-charge transcript or when he complimented the judge as being fair at the end of the trial or when in his closing submissions, he told the jury that the crown scored heavily as it were in his cross-examining of myself, as it were.
156. That had Peter competently shown through cross-examining the expert that the report was incomplete, incompetent, biased and misleading, I probably would have been acquitted by the jury.
157. The Court of Appeal reasoned that I chose not to challenge the expert or cross-examine the expert witness. They could only come to that conclusion because the Court of Appeal was not provided with the copy of the preliminary hearing transcript where it was clear I failed to cross-examine the expert, not because of lack of trying but because I lacked legal knowledge and had no lawyer. When Amicus helped me, he didn’t challenge the qualification because he had not read the preliminary hearing transcript and assumed that the qualification was granted after a full-some hearing. That was not the case.
158. That there are many areas that Peter could have helped me but did not.
159. That I had been complaining that the bias of the OSC in handing me over to the police was prejudicial and that had something to do with selective prosecution based on my race among others.
160. That Peter never told me that I could bring a motion for abuse of process.
161. Peter never told me that that I could bring a motion for selective prosecution since I had many cases that I pointed to him where there were no criminal charges laid.
162. Peter did not advise me that I could bring a motion for a stay of proceedings for unreasonable delay or abuse of process or selective prosecution.
163. That I was charged in November 2009 but I wasn’t taken to trial until three years later. A motion for unreasonable delay was possible.
164. Peter did not advise me that a pretrial motion to exclude the expert witness from being proffered could also have been brought at the commencement of the trial during the pretrial motion period.
165. That during the selection of the jury, Peter did not tell me that I could challenge the jurors on the basis of whether they would be impartial given my ancestry, race and the nature of the crime, since I complained to him that they targeted me because among other reasons, I was of Chinese background.
166. That during the trial, Peter never assisted me in making a motion to exclude the video of February 27, 2009 as its contents were more prejudicial than probative. Indeed Peter attributed the video to contain my inculpatory statements or confession and still he want this video with inculpatory statements to go in. That during the pre-Chrge conference, as one can see when reading the transcript, Peter was more on the side of the crown than me. He was making submissions that made it worse for me despite some nuances like his statements that good character should be balanced with bad character. At some point even the Judge whom he was strenuously trying to please, disagreed with him.
167. That I told Peter that I needed a forensic accountant as well as an expert on financial investments. That did not happen.
168. That there was a question as to why the government could agree to the presence of Amicus and not counsel for me.
169. That while Peter could not do some of the things that I have listed above, he was clearly incompetent in not reading the preliminary hearing transcript, in consenting to the qualification of the so-called expert witness, in not seriously cross-examining him on his report during the trial to dent his credibility on the basis that it was biased, incompetent, incomplete and misleading, as the preliminary hearing judge had already laid the foundation for this.
170. Peter was incompetent as Amicus by not telling me what motions were open to me since he stated that he was there to help me in the interests of justice and to further the principle of a fair trial.
171. Justice Nordheimer in denying me counsel stated in his endorsement of September 23, 2011 among others that, “I am advised that Mr. Tang was able to cross-examine witnesses, including the crown’s expert. He made submissions on whether he should be committed for trial”.
172. That the Judge could only make this finding because he was not privy to the relevant transcripts where it was clear I was not able to cross-examine witnesses effectively as a competent person especially a lawyer would do. It appears that no-one read the preliminary hearing transcripts, not the trial Judge, not Amicus and not the Court of Appeal Judges. I needed a lawyer for all three levels of courts and I did not.
173. If Justice Nodheimer had read the transcript he would not have come to this conclusion that, “ Mr. Tang is not incapable of representing himself”. He however recognised that “that said, I acknowledge that Mr. Tang does not have experience with the legal system. I also acknowledge that Mr. Tang would be much better served if he had counsel. Indeed the trial process itself would be better served if Mr. Tang had counsel”. I clearly needed counsel in order to have a fair trial despite the judge’s disclaimer that :“ That is not the same thing, however, as saying that representation for Mr. Tang is ‘essential’ to a fair trial. This evaluation was made without the benefit of the preliminary hearing transcript and was given also a year before the trial, the judge not having anticipated the exigencies of the trial and not being the trial judge himself.
174. During the trial I wanted to do the opening and closing addresses but the Judge and Peter discouraged me. They knew I was incompetent.
175. But my belief is that Peter’s closing argument was very incompetent. He inflamaed the jury by highlighting my unflattering character of claiming to be the Chinese Warren Buffet instead of sticking to the issues of the incompetent, incomplete, biased, inadequate and misleading report of the expert.
176. Peter had spent any time on the mens rea of fraud, which was my central defence and if he cross-examined the expert witness competently on the incomplete report, it could have come out that I had no intention in committing the fraud.
177. That I was very frustrated during the trial, not having my own counsel and not competent myself and being directed by Amicus who was not my counsel and who was himself incompetent and being prevented from bringing character witnesses and conducting the trial in a manner that would have suited my style, albeit incompetent.  I was told by Peter and the judge repeatedly that “that is irrelevant etc”.
178. That I believe that I did not get a fair trial because I was self-represented.
179. That I believe that the Amicus who was appointed to assist the court was incompetent when it came to his assisting me in those limited areas.
180. That I believe that if I was represented by a competent lawyer, I would have been acquitted of the charges.
181. That I am asking the Supreme Court of Canada to order the appointment of counsel for me.
182. That I am asking the Supreme Court of Canada, to require the Crown law office to provide all the documents that were filed at the Court of Appeal as I have no funds to retain counsel of to make copies of these voluminous documents.
183. That for the motion to adduce this fresh evidence partly contained in this affidavit, I will rely on the two factums that were filed in the Court of Appeal on both conviction and appeal.
184. The grounds for fresh evidence were not pointed out in the Court of Appeal because I was incompetent to conceive these grounds until I was finally free from custody and after the appeal was dismissed as I became less preoccupied with perfecting the appeal. I have had time to think.
185. I submit this affidavit as part of my response to the application filed by the Gowlings law firm and to adduce new evidence and for the exercise of judicial discretion to set all previous orders and start all over again or to issue an order returning all the monies to me or to stay all the orders until the Supreme Court of Canada has rendered an Order or orders in my case

SWORN AT THE CITY OF RICHMOND HILL IN THE PROVINCE OF ONTARIO,

THIS Date:    7th  Day of  December , 2015

SIGNATURE: ______________
WEIZHEN TANG
17 Silk Court
Richmond Hill, Ontario  L4B 4A4
Tel: (416) 886-8715
Email address: [email protected]

Sworn before me in in on    .
                              (Name of city, town, etc.) (Name of province or territory) (Date)

(A Commissioner for Oaths)

(Signature)

唐炜臻 · 发表于 2015-12-14 21:09:56

明天15日，在330 university ave。

唐炜臻 · 发表于 2015-12-15 21:28:10

The lower courts are controlled by local law firms, judges come from there and when they retire, they go back there. Supreme Court judges are more independent and are not beholden to law firms. Further, the Supreme Court sits in panels of nine and therefore difficult to scare them and they don't look for jobs when they retire but superior court justices sit alone and are intimidated by big firms. And they come from these same law firms and go back there when they retire.