AFFIDAVIT of WEIZHEN TANG to ADDUCE FRESH EVIDENCE

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Court File No.

In the SUPREME COURT OF CANADA

(On Appeal from the Court of Appeal for Ontario)

Between

Weizhen Tang Applicant

And

Her Majesty the Queen Respondent

AFFIDAVIT of WEIZHEN TANG to ADDUCE FRESH EVIDENCE

Weizhen Tang The self represented, Appellant

17 Silk Court

Richmond Hill

Ontario L4B 4A4

Tel: (416) 886-8715

Mr. John Pearson for the Respondent

Ministry of The Attorney General

Crown Attorney Office, Criminal

720 Bay Street 10th Floor

Toronto, Ontario

M5G 2K1

Tel: 416-326-4600


Affidavit of Weizhen Tang

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

1. I am the applicant in this matter and as such, I have full knowledge of the matters sworn to in this affidavit.

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 is in support of my application to adduce extra and fresh evidence which was not litigated fully or even partially at the Preliminary Hearing, Superior Court of Justice and the Court of Appeal for Ontario.

5. This affidavit also 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. That Amicus never seriously pursued the incompleteness, incompetence, deliberate omission of the data by the expert, that would have helped my case.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. That to qualify for welfare, I was subjected to a thorough investigation and after the financial investigation, I was qualified to be awarded welfare.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.”

23. 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…”.

24. That it was clear to me, to the Judge and to the crown that I didn’t know anything about the law.

25. 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.

26. 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.

27. 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”.

28. 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.

29. 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.

30. 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?”

31. 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.

32. The Judge took over the questioning from page 35 to page 48.

33. 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.

34. 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”

35. That began a cascading route to what I believe to be a miscarriage of justice for my lack of legal representation.

36. 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.

37. 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”.

38. 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”.

39. 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.

40. 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”.

41. 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.

42. 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”.

43. 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.

44. 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”.

45. 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.

46. 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…”

47. 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?”

48. 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”.

49. 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.

50. 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.

51. 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.

52. Peter told me clearly that he was not my lawyer and had very limited jurisdiction to assist me.

53. 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.

54. 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.

55. Peter also told me that he cannot accept any documents from me but that he will only accept documents from the crown.

56. That Peter did not prepare me for my trial in whatever way at all.

57. 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.

58. There are many things which I asked Peter to do for me which he refused to do or advised me not to do.

59. 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.

60. 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.

61. 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.

62. 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.

63. 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.

64. Peter did not take documents regarding my theory of the defence.

65. Peter’s incompetence was more displayed in two crucial areas in my belief.

66. 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.

67. 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.

68. 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.

69. 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.

70. That Peter could have delved into the expert’s lack of qualifications, his apparent bias which the Preliminary Inquiry Judge alluded to.

71. 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.

72. 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.

73. 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.

74. That Peter because he was not my lawyer was not thorough in cross-examining the expert or any expert.

75. 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.

76. 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.

77. 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.

78. That there are many areas that Peter could have helped me but did not.

79. 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.

80. That Peter never told me that I could bring a motion for abuse of process.

81. 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.

82. 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.

83. 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.

84. 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.

85. 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.

86. 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.

87. That I told Peter that I needed a forensic accountant as well as an expert on financial investments. That did not happen.

88. That there was a question as to why the government could agree to the presence of Amicus and not counsel for me.

89. 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.

90. 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.

91. 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”.

92. 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.

93. 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.

94. During the trial I wanted to do the opening and closing addresses but the Judge and Peter discouraged me. They knew I was incompetent.

95. 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.

96. 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.

97. 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”.

98. That I believe that I did not get a fair trial because I was self-represented.

99. 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.

100. That I believe that if I was represented by a competent lawyer, I would have been acquitted of the charges.

101. That I am asking the Supreme Court of Canada to order the appointment of counsel for me.

102. 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.

103. 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.

104. 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.

105. I submit this affidavit as part of my application to adduce new evidence and for appointment of counsel to prosecute my application for leave to appeal in the Supreme Court of Canada.

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

THIS Date: 20th Day of Nonember , 2015

SIGNATURE: ______________

WEIZHEN TANG

17 Silk Court

Richmond Hill, Ontario L4B 4A4

Tel: (416) 886-8715; Fax: (416) 596-2598

Email address: [email protected]

SWORN BEFORE ME, AT THE CITY OF TORONTO IN THE PROVINCE OF ONTARIO

THIS DATE: _____Day OF _________ , 2015

OATH COMMISIONER : _________________________

SIGNATURE: ________________________________

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