R. v. Tran, 2023 ONCA 11

WHAT YOU NEED TO KNOW

·         Trial judge’s conclusion that the appellant and co-accused had concocted their evidence or that it was inherently unbelievable they had not spoken about the charges prior to trial was tainted by error:

o   It was procedurally unfair for trial judge to rely on an issue not raised by the Crown in cross-examination or in submissions in assessing the credibility of defence witnesses, including the accused.

o   In this case, the error was compounded by a misapprehension of evidence: the trial judge failed to consider and address the fact that the appellant and co-accused were prohibited from communicating by virtue of their release orders.

·         Reasoning errors in a trial judge’s credibility analysis gives rise to legal error. Reviewing courts will be hesitant to apply the curative proviso where there is a demonstrated legal error that taints the trial judge’s credibility analysis.

BACKGROUND

The appellant, Mr. Tran, was convicted of one count of fraud over $5000 and one count of possession of proceeds of crime over $5000. He was jointly charged with Mr. Ha who worked for a fibreglass insulation company. Using false return documents he created, Mr. Ha credited over $500,000 from the company to various credit cards, including a number of cards in the appellant’s name. Approximately $291,000 was credited to the appellant’s credit cards over the course of several years. Mr. Ha pleaded guilty; the appellant’s matter proceeded to trial.

The Crown did not call any witnesses. Rather, the Crown relied on an agreed statement of facts that established the various credits to the appellant’s cards. The appellant testified in his defence. He did not contest that the credit card transactions had occurred; rather, his position was that he was unaware the transactions were fraudulent. The appellant explained that Mr. Ha had approached him, several years prior, in search of a loan. The appellant ultimately loaned Mr. Ha $240,000.

Mr. Ha also testified for the defence. Mr. Ha corroborated the appellant’s version of events: namely that the appellant had loaned him money and that the appellant was unaware of his scheme. Mr. Ha further testified that his evidence at trial was the first time he had ever told the appellant that the funds he was using to repay the loan were fraudulently obtained. He felt too ashamed to tell the appellant the truth, and their respective release conditions prohibited him from communicating with the appellant.

The only issue at trial was whether the Crown had proven that the appellant had the requisite mens rea for fraud and possession of proceeds of crime. In other words, did the appellant have knowledge of, or was he wilfully blind to, the fraudulent scheme he ultimately participated in.

The trial judge rejected both the appellant and Mr. Ha’s evidence – she concluded there was no such loan and that the pair concocted their evidence to avoid the appellant’s conviction.

ISSUE ON APPEAL

The trial judge began her credibility assessment of the appellant and Mr. Ha’s evidence by stating she believed it was “far-fetched” that Mr. Ha would not have told the appellant about the fraud until trial. She further concluded that the appellant’s version of events was a “fantastic story” that Mr. Ha and the appellant “concocted” to prevent the appellant from being convicted.

There are a number of issues with this finding:

·         This finding was made in a way that was procedurally unfair – Crown counsel did not raise this issue with the defence witnesses in cross-examination or in his closing submissions; and

·         This finding was based on a material misapprehension of evidence.

Procedural (Un)fairness

While the Crown challenged the credibility of the appellant and Mr. Ha extensively at trial, the Crown never pursued whether the witnesses had communicated about the substance of the charges after the appellant was charged either in cross-examination or in closing submissions. As a result, the appellant had no opportunity to address any concerns about concoction in his evidence or in submissions. Moreover, given that this issue arose for the first time in the trial judge’s reasons, trial counsel was not given the opportunity to object.

Misapprehension of Evidence

In concluding that the defence evidence was not credible and that it was “inherently unbelievable” that the appellant and Mr. Ha had not discussed the charges, the trial judge misapprehended material evidence. She failed to consider or address an obvious explanation that arose from the defence evidence: both the appellant and Mr. Ha were prohibited, by virtue of their release orders, from communicating with one another prior to trial. Both the appellant and Mr. Ha testified to this effect.

While the trial judge was not necessarily required to accept this evidence as an explanation, she was required to consider the evidence that they were legally prohibited from speaking before rejecting the evidence was inherently incapable of belief.

Disposition – Appeal allowed, convictions set aside; New trial ordered.

For more information on a judge’s credibility assessment of an accused check out Emond’s “Modern Criminal Evidence”, chapter 3, 4, 5 and 8.

Read the full decision here.