Decision ‘important reminder’ on reasoning errors in credibility analysis, counsel says

By Amanda Jerome

Law360 Canada (January 12, 2023, 4:16 PM EST) -- A man’s conviction of fraud and possession of proceeds of crime has been set aside and a new trial ordered, as the Court of Appeal for Ontario found the trial judge “made the central credibility finding in a procedurally unfair manner” and “misapprehended material evidence in making the same credibility finding.”

Michael Lacy, a partner at Brauti Thorning LLP and counsel for the appellant, Quoc Tran, with Sara Little, said “for appellate counsel, the case is an important reminder that where there are reasoning errors on the part of the trial judge that affect a credibility analysis, this gives rise to legal error.”

“In this case,” he explained, “the trial judge drew an adverse inference against the accused and the defence witness that was not supportable on the trial record. The Crown had never raised the issue and the defence was never put on notice that it was an issue.”

Michael Lacy, Brauti Thorning LLP

Michael Lacy, Brauti Thorning LLP

“It was therefore unfair for the trial judge to discount their evidence based on a purported ‘implausibility’ that they would not have communicated before trial about what had happened,” Lacy added, noting that “that finding was even more problematic given that both the witness and the accused were prohibited from communicating and had they done so they would have been breaching court orders.” 

“There was nothing ‘implausible’ about them complying with those conditions,” he stressed.

The case, Lacy noted, “also highlights that where there is a demonstrated legal error that infects the credibility analysis, reviewing courts will be hesitant to apply the Criminal Code appellate curative proviso.”

In R. v. Tran, 2023 ONCA 11 the court heard that Tran had been “convicted of one count of fraud over $5,000 and one count of possession of proceeds of crime over $5,000, contrary to ss. 380(1) and 354(1) of the Criminal Code.” He had been “jointly charged with Hai Ha with fraud and possession of proceeds of crime.”

According to court documents, Ha was a “customer service representative for a fibreglass insulation company” and, by “Using false return documents he created,” Ha credited “approximately $518,000 from the company to various credit cards, including a number of cards in the appellant’s name.”

In total, the court noted, “approximately $291,000 was credited to credit cards in the appellant’s name between 2011 and 2014.”

At trial, the Crown “led no viva voce evidence.” Instead, the court noted, the “underlying credit card transactions were tendered at trial through an agreed statement of facts, supported by documentation for each transaction.”

Tran did “not contest that the credit card transactions had happened; however, it was also clear that he did not admit knowledge of the fraudulent acts by Mr. Ha against the company for which Mr. Ha worked.” According to court documents, Tran “denied knowing that the credit card transactions conducted by Mr. Ha were fraudulent.”

Justice Jill Copeland, writing for the Court of Appeal, determined that the “central credibility finding by the trial judge against the appellant was tainted by two errors that affected the fairness of the verdict.”

“First,” she noted, the trial judge, Justice Beth Allen of the Superior Court of Justice, “made the central credibility finding in a procedurally unfair manner” by basing it “on an issue that the Crown did not raise in submissions and on which the Crown did not cross-examine either defence witness.” 

Justice Allen, the court noted, also “misapprehended material evidence in making the same credibility finding.”

“These errors resulted in a miscarriage of justice that requires a new trial,” Justice Copeland stressed.

In her analysis, Justice Copeland noted that the “only contested issue at trial was whether the appellant had knowledge of the fraudulent nature of the transactions.”

“Given this context,” she explained, Justice Allen had to “weigh the force of the Crown’s circumstantial case and the credibility of the defence evidence, in the context of the evidence as a whole, and decide whether the Crown had met its burden to prove the appellant’s knowledge of the fraudulent nature of the transactions beyond a reasonable doubt.”

“Unfortunately,” she added, Justice Allen “made a central credibility finding in a procedurally unfair manner, and materially misapprehended evidence in making that finding.”

In Justice Allen’s analysis of the credibility of the evidence, she determined it “far-fetched that he [Ha] would say nothing to [the appellant] for five years and leave [the appellant] suspended in ignorance on the basis of his charges.” She also did not believe that “[the appellant] would not make it his business to inquire into the details of what he contends destroyed his life and long-established career.”

Justice Copeland found there to be “two interrelated problems with the finding” in this analysis.

“First, it was made in a procedurally unfair manner because it was based on issues that Crown counsel at trial did not raise with the defence witnesses in cross-examination or in submissions. Second, it is based on a material misapprehension of evidence,” she explained.

In Justice Copeland’s view, Justice Allen’s “finding that it was inherently unbelievable that the appellant and Mr. Ha had not discussed the substance of the charges between the time the appellant was charged and his trial was a material and essential part of her reasoning process.”

“Although in her reasons the trial judge outlined a number of other reasons why she did not believe the defence evidence, she gave prominence to her disbelief that they had not communicated between the time of the charges and the appellant’s trial,” she noted.

In a decision released Jan. 10, Justice Copeland found that the appellant was “entitled to a fair assessment of his evidence in the context of the evidence as a whole, untainted by the procedural unfairness of the trial judge rejecting the credibility of defence evidence on a basis not raised by Crown counsel either in cross-examination of defence witnesses or in submissions, or by the material misapprehension of evidence on issues essential to the trial judge’s reasoning.”

“The procedural unfairness and misapprehension of evidence in this case related to a central aspect of the trial judge’s assessment of the credibility of the defence evidence. I am not satisfied that this is an appropriate case to apply the proviso,” she ruled, with Justices Kathryn Feldman and Benjamin Zarnett in agreement.

The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at or 416-524-2152.

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