R. v. Cheung

2016 BCCA 221 R. v. Cheung

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Cheung, 2016 BCCA 221 Date: 20160524 Docket: CA43427 Between: Regina Respondent And Vincent Eric Gia-Hwa Cheung Applicant Restriction on Publication: A publication ban has been mandatorily imposed under ss. 517(1) and 520(9) of the Criminal Code restricting the publication, broadcasting or transmission in any way of the evidence taken, the information given, or the representations made and the reasons, if any, given or to be given by the justice presiding over the application for judicial interim release, including the review of the bail, until the trial has ended. Before: The Honourable Madam Justice Bennett (In Chambers) A review of an order of the Supreme Court of British Columbia, dated December 18, 2015 (R. v. Cheung, 2015 BCSC 2519, Vancouver Docket 26859). Counsel for the Applicant: J.M. Peters Counsel for the Respondent: J. Bellows, Q.C. Place and Date of Hearing: Vancouver, British Columbia April 14, 2016 Place and Date of Judgment: Vancouver, British Columbia May 24, 2016 Summary: Application to review detention order. Accused took issue with the entirety of the Crown's submissions at the bail hearing. He challenges the bail judge's determination that the Crown was not required to call evidence to establish each circumstance alleged justifying continued detention, the judge's reliance on acts not the subject matter

of a charge or conviction, the legal standard applied, the conclusion that the risk to the public was not manageable with bail conditions, and overall propriety of the detention order. Held: application dismissed. Accused cannot make blanket challenges to all Crown allegations. At a bail hearing, a party must clearly and unequivocally dispute particular facts before the other side is required to call evidence to establish the factor. The bail judge likely misspoke regarding the applicable legal standard for a risk to the public. However, his conclusion is supportable under the correct standard. The bail judge was correct in concluding that sureties would not alleviate the danger to the public. The denial of bail was not clearly wrong. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Vincent Eric Gia-Hwa Cheung is charged with nineteen counts of arson and four counts of recklessly discharging a firearm. The Crown filed a direct indictment on September 16, 2015. [2] After his arrest, Mr. Cheung made an application for judicial interim release that was heard in December 2015. On December 18, 2015, Justice N. Smith ordered that Mr. Cheung be detained in custody on the basis that detention was necessary for the protection and safety of the public. [3] Mr. Cheung applies to this Court pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of the

detention order. Background [4] I propose to outline the circumstances of the alleged offences as submitted by the Crown, keeping in mind that one basis for the review is that the Crown was required to call evidence at the hearing. [5] Mr. Cheung faces a direct indictment with 23 offences alleged. There are 21 separate incidents alleged: 17 counts of arson of homes and/or vehicles and four counts of recklessly discharging a firearm. The issue at trial will be whether Mr. Cheung committed the offences as a principal or a party. In other words, no issue is taken that the offences occurred. The question will be whether Mr. Cheung is the offender. [6] The offences occurred over a ten month period, between April 2011 and January 2012, in nine different jurisdictions in the Lower Mainland of British Columbia. Fifteen families were attacked, some more than once. Houses and vehicles were set on fire, usually in the early morning hours. Shots were fired into residences with no apparent regard as to whether anyone was in the home. [7] Counts 1 to 15 (12 arson counts and 3 discharging a firearm counts) were committed over a three month period between April 17 and July 8, 2011 involving 11 different families. The offences occurred in seven different municipalities, and the police were initially unaware they were connected. [8] The connection was made when the Justice Institute of British

Columbia (JIBC) received an e-mail on July 28, 2011. The JIBC is a post-secondary education facility that focusses on training justice and public safety professionals. The e-mail was sent to nine separate departments within the institute. The subject line reads, "stop following people before someone gets hurt". The body of the e-mail lists nine names followed by addresses. Eight of the nine names were victims of the arsons and/or shootings. Of note, the author of the e-mail made certain errors in the use of words and misspellings of names. These errors were repeated in subsequent written communications, which the Crown says can be directly linked to the applicant. [9] All of the victims had, at some point, parked his or her car in the parking lot of the JIBC and all had their licence plates queried by an employee at the Insurance Corporation of British Columbia (ICBC) for a non-business purpose. The query identified the home address of the registered owner of each licence plate. [10] Counts 16 and 17 (two counts of arson) were committed on August 26, 2011. The following day, the victim in Count 6 returned home to find a canvas bag on his front lawn. Near the bag was a cellular telephone with a label on the back with the name of another victim. The only two contacts in the telephone were other victims. The bag contained a loaded handgun wrapped in a towel and a typed document

that contained victims' names, addresses, some telephone numbers and a description of offences, such as "car torched", "drive by", and "house torched". The description of offences matched the offences associated with the name on the list. Four of the errors and spelling mistakes in the JIBC e-mail are also present in this list. [11] Forensic DNA analysis of a sample taken from the inside top of the canvas bag matched Mr. Cheung's DNA with a statistical frequency of 1 in 1.2 trillion. [12] Five more incidents, with six more offences, occurred, with the last offence occurring on January 13, 2012 (count 23). Between December 31, 2014 and January 8, 2015, letters were sent to seven of the victims. In addition, two letters were sent to executives at JIBC. Eight of the nine letters were the same, however, the victim who found the canvas bag received a threat of a pending attack. The envelopes were all handwritten. One of the victim's names was misspelled as in the earlier e-mails and list. [13] A friend of Mr. Cheung, Mr. Gill, told the police that Mr. Cheung had admitted being responsible for all of the fire bombings and shootings. He purportedly told Mr. Gill that he took down the licence plates and hired someone at ICBC to run the plates. Mr. Gill also supplied the police with documents that had Mr. Cheung's handwriting and signature. Mr. Gill suffers from a mental illness. [14]

Mr. Cheung acknowledged his handwriting on the documents to the police. Mr. Cheung also provided handwriting samples. A handwriting expert will say that Mr. Cheung's printing appears on the envelopes. [15] The police deployed undercover officers to obtain a statement from Mr. Cheung. In a recorded conversation, he told officers, as set out in the Crown's memorandum of argument: [T]hat he had seen cars following him and that he followed one such vehicle back to the Justice Institute. He said he found out where they lived by running their plates which cost him "a hundred bucks a fucking number." He stated "My - my instinct is to fight. If you are going to fucking following me. I'll fuck you up. When I think you are endangering my family, there's nothing I won't do to protect my family..." On August 30, 2015 the applicant stated to undercover officers, in relation to people following him and arsons, "I don't give a shit if it's done its done man. Yeh, it is done, it's done. What do I care? You wanta fuckin' break into my house it's on..." "...I have wife and kid and you fuck with us, I will fuckin' kill you." The applicant stated that he drove by some of the places after the fact including one in Burnaby and saw "...char marks on the ground." [16] There were scorch marks on the driveway of the victim in count 1, which was an arson attack on his motor vehicle, supported by

photographic evidence. [17] Police searched Mr. Cheung's home. They found a memory card from a digital camera with photos of car licence plates unrelated to the offences charged. Also on the card were photos of two condominium complexes that were the homes of two victims. Some photos of a particular condo were of the garage area, where an attack had occurred. [18] Also located in the search of Mr. Cheung's home were a large quantity of magazines and ammunition in a rubber tub in the family room of his home. This included 20 high-capacity ammunition magazines, which are prohibited devices. Also found were a loaded handgun hidden in the pantry, an improvised explosive device, brass knuckles in two bedside tables, a night vision lens, audio probes for detecting listening devices, and a large quantity of counterfeit United States currency. [19] Police searched Mr. Cheung's mother's house and found another digital camera. It contained additional photos of licence plates that were taken on July 29, 2015 but again, unrelated to the offences charged. Exchanges Between Counsel [20] In advance of the bail hearing, Crown counsel sent letters to the defence indicating some of the evidence he intended to rely on. He received a letter back from defence counsel asking for information on the police officers the Crown intended to call at the hearing and the nature of their testimony. Crown

counsel called back the same day, advising that he did not plan on calling any evidence but would rely on oral submissions. A few days later, defence counsel wrote to Crown counsel, advising that he would not consent to the Crown proceeding in this manner. [21] Crown counsel replied by letter the same day. He asked defence counsel what procedure he suggested be followed at the bail hearing, offering two alternatives: It seems to me that there are really only two alternatives, namely that I call the primary investigator in the case who would give evidence about all aspects of the evidence that I propose to allude to, which would be hearsay on his part or that I call evidence on each and every aspect of the evidence I propose to rely upon which would require calling numerous police officers and would turn the show cause hearing into a quasi trial. As far as I am aware my proposed manner of conducting the show cause is the normal and preferred practice in our courts subject only to where an accused specifically takes issue with specific evidence. If there are specific factual matters that you intend to dispute please advise me of these matters as soon as possible. [22] Defence counsel replied, putting Crown counsel on notice that he would be taking issue with every one of the Crown's anticipated submissions at the hearing. He made no suggestion as to the proposed procedure going

forward. He also made it clear that he expected evidence to be called and it was not his job to advise the Crown how to respond to Mr. Cheung's bail application. In essence, defence counsel took a general "prove it" stance. [23] As anticipated, at the bail hearing, defence counsel argued that the Crown could only rely on oral submissions if it was with his consent, and Mr. Cheung specifically refused to consent to proceeding in that fashion. Mr. Cheung took the position that the Crown had to call evidence that was subject to cross-examination. Reasons of the Chambers Judge [24] The chambers judge referred to the material before him, which included the submissions of counsel, expert opinion evidence (DNA and handwriting), photographs, documents, certificates of firearms analysis, and transcripts of statements. The appeal books of exhibits and written arguments run to over 700 pages. The material was not attached to affidavits. [25] The chambers judge recounted relevant case law, including a number of the cases I will discuss below, relevant court practice, as well as the overarching nature of bail hearings. He concluded that without the defence identifying an area of specific controversy or contradiction, the Crown was entitled to rely on submissions, as well as the other material filed by the Crown. [26] The chambers judge concluded that detention was not justified on the

tertiary ground at para. 30: Although the crimes alleged are serious, involving attacks on vulnerable and random victims, I find those considerations are balanced by the offer of sureties totalling one million dollars, which I find in these circumstances would be sufficient for the purpose of maintaining confidence in the administration of justice, and detention is not justified on the tertiary ground. [27] In ordering detention on the secondary ground, for the protection or safety of the public, the chambers judge concluded, at paras. 31-34: However, I have greater concerns on the secondary ground. That concern centres on the items found in searches of the homes of the accused and his mother at the time of or shortly after his arrest. Those items included a large quantity of ammunition and more than 20 high‑capacity ammunition magazines that the Crown alleges are prohibited devices under s. 84 of the Criminal Code. Certificates of analysis indicate these magazines are compatible with at least seven different weapons. The Crown says two of them were loaded with rounds of the same calibre as the bullets that were fired at a vehicle, as alleged in Count 10, and at a house, as alleged in Count 14. The weapons compatible with those magazines were not found, indicating a risk that the accused may still have access to a significant dangerous and illegal arsenal. In addition to

magazines and ammunition for weapons not found, the police also found one loaded handgun and a replacement barrel for a different one. Police also found a number of items consistent with ongoing or potential illegal activity. These include an improvised explosive device, brass knuckles, a night‑vision lens, a counter-surveillance probe, and a quantity of counterfeit United States currency with a total face value of $9,900. A camera found at the accused's mother's home had a memory card with photographs of three different vehicle licence plates, all apparently taken on July 29, 2015. Those licence plates were not associated with any of the victims, but I find the evidence particularly troubling in view of the fact that the perpetrator or perpetrators of these offences apparently identified and located their victims through licence plates. I recognize that the accused has no criminal record and the items I have been referring to have not, with one possible exception, been linked to the offences in this case. But I find that the accused's possession of these items, combined with the strength of the Crown's case and the nature and number of the alleged offences, gives rise to a substantial possibility of further offences if he is released from custody. In an affidavit, the accused's wife says she was unaware of the presence of these items in her home and she will now be more

careful to monitor what is there. The evidence of her previous lack of knowledge, if accepted, calls into question her ability to monitor the accused's conduct in the future, and her offer to act as surety does not significantly allay the concerns on the issue of dangerousness. Errors Alleged [28] Mr. Cheung says that the chambers judge erred by permitting the Crown to rely on submissions of counsel, and failing to require the Crown to call evidence; that the chambers judge erred in relying on acts that were not the subject matter of any charge or conviction; that the chambers judge erred by applying the wrong test; that the chambers judge erred in failing to accept that stringent bail conditions could alleviate any concerns over danger to public safety; and that the denial of bail was clearly wrong. Legislation [29] The relevant provisions concerning judicial interim release in Criminal Code are found in ss. 515, 518, and 520. Section 515(1) is the default provision concerning bail hearings and places the onus on the Crown to "show cause" why the accused should not be released from pre-trial custody. Order of release 515 (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that

the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made [30] Section 515(6) reverses the onus by requiring the accused show cause why his detention is not justified. The provision applies when certain offences, including reckless discharge of a firearm (s. 244.2), are charged: Order of detention 515(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused's detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged (a) with an indictable offence (vii) that is an offence under section 244.2 [31] Detention is only justified upon a showing of one or more of the three grounds provided for under s. 515(10). These are commonly referred to as the "primary", "secondary", and "tertiary" grounds. Justification for detention in custody (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her

attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. 516 (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused. [32] What may be

considered by a justice hearing an application under s. 515 is described in s. 518(1). Relevant portions of that provision are as follows: 518 (1) In any proceedings under section 515, (a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable; (b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way of cross-examination unless the accused has testified respecting the offence; (c) the prosecutor may, in addition to any other relevant evidence, lead evidence (i) to prove that the accused has previously been convicted of a criminal offence, (ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence, (iii) to prove that the accused has previously committed an offence under section 145, or (iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused; (d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel; (d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim

of or witness to an offence; and (e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case. [33] Section 520 lays out the procedure for an accused to apply for a review of an order made under s. 515: Review of order 520 (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order. Evidence and powers of judge on review (7) On the hearing of an application under this section, the judge may consider (a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (b) the exhibits, if any, filed in the proceedings before the justice, and (c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either (d) dismiss the application, or (e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted. Limitation of further applications (8) Where an application under this section or section 521 has been heard, a further or other application

under this section or section 521 shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application. Application of sections 517, 518 and 519 (9) The provisions of sections 517, 518 and 519 apply with such modifications as the circumstances require in respect of an application under this section. [34] The relevant provisions of the Canadian Charter of Rights and Freedoms are the presumption of innocence and the right not to be denied reasonable bail without just cause found in ss. 11(d) and (e): Proceedings in criminal and penal matters 11. Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; Jurisdiction to Consider Application [35] This Court has held that while it has concurrent jurisdiction with the Supreme Court of British Columbia to review an order made under s. 515 of the Criminal Code, in the absence of special circumstances, the review should be before a judge of the Supreme Court. The exception is where, as in this case, a direct indictment has been filed, and two levels of review are contemplated: see R. v. Sharma, 1995 CanLii 251 at paras. 27-28

(B.C.C.A. Chambers); R. v. Sanita (1981), 60 C.C.C. (2d) 184 at 186 (B.C.C.A. Chambers). [36] Therefore, hearing the review is a proper exercise of my jurisdiction. Standard of Review [37] The Supreme Court of Canada recently considered the standard of review by a judge exercising his or her jurisdiction pursuant to Criminal Code ss. 520 (reviews requested by the accused) and 521 (reviews requested by the Crown) in R. v. St-Cloud, 2015 SCC 27 at paras. 6 and 121: Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr.C. to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene. It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to

exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. The Nature of a Judicial Interim Release Hearing [38] Bail hearings place a premium on expediency and informality while also balancing prejudice to the accused. The nature of the hearing was discussed in St-Cloud at paras. 107-109: It is true that there are similarities between the interim release decision and the sentencing decision. Although both these decisions are discretionary, specific statutory rules apply to each of them. In both cases, the rules on the admissibility of evidence are relaxed: ss. 518 and 723 Cr.C. As well, the release of an accused must be ordered unless the prosecution shows cause why detention is justified: s. 515(2) and (10) Cr.C. Similarly,

the sentencing judge must opt for the least restrictive sanction having regard to the circumstances: s. 718.2(d) Cr.C. Finally, the various possibilities available to the judge are similar. In the case of interim release, the justice may release the accused without conditions, impose statutory conditions for interim release of the accused (with or without sureties), require the payment of a deposit or order the detention of the accused: s. 515(1), (2)(a) to (d), (4) to (4.3), (5) and (8) Cr.C. In the case of sentencing, the judge may discharge the accused, impose statutory conditions of probation, fine the accused or sentence the accused to a term of imprisonment: ss. 730, 731, 734 and 732.1(3) Cr.C. However, there are also some significant differences between the interim release decision and the sentencing decision. In Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, this Court discussed the expeditious nature of our interim release system and the implications of that nature: ... s. 503(1)(a) Cr. C. requires that a person who is arrested and detained be taken before a justice "without unreasonable delay" and in any event within 24 hours after the arrest. Section 515 Cr. C. provides that the justice shall release the person unless the prosecution shows cause why the detention should be continued. The grounds that can be relied on to deny the person's

release are limited. In the short time it has before it must show cause why the detention of the accused is justified, the prosecution has to gather the evidence it intends to use at the bail hearing, which means it may have insufficient time to meet with witnesses and further investigate the matters relevant to bail. Section 516(1) Cr. C. provides that the adjournment of a bail hearing cannot exceed three days except with the consent of the accused; and orders can be reviewed at the request of the accused provided that the accused has given the prosecution two days' notice (s. 520(1) and (2) Cr. C.). To avoid any delay prejudicial to an accused who ought to be released, while at the same time ensuring that those who do not meet the criteria for release are kept in custody, compromises had to be made regarding the nature of the evidence to be adduced at the bail hearing. There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified. According to s. 518(1)(e) Cr. C., the prosecutor may lead any evidence that is "credible or trustworthy", which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior

convictions, untried charges, or personal information on living and social habits. The justice has a broad discretion to "make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable" (s. 518(1)(a)). The process is informal; the bail hearing can even take place over the phone (s. 515(2.2)). [Underlining added; paras. 27-28.] This conscious choice to expedite the release hearing is grounded in the importance our society attaches to the presumption of innocence and the right of individuals to liberty even when charged with a serious criminal offence. However, this expeditious process is not without consequences for the accused, who generally has very little time to choose counsel and may even have no legal representation at the release hearing. The accused, or his or her counsel, also has very little time to, inter alia, review and analyze the prosecutor's evidence, devise a defence strategy and make the best possible decisions on how to proceed. [39] The approach to evidence that may be tendered at bail hearings and s. 520 reviews was discussed several times, including at para. 129: I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr.C. [40] Mr. Cheung was charged with four offences of recklessly discharging a firearm pursuant to Criminal Code s. 244.2, which on the application of

s. 515(6)(a)(vii) places the onus on Mr. Cheung to show cause why his detention was not justified. Discussion i) Permitting the Crown to Rely on Submissions and Failing to Require the Crown to Tender Evidence [41] The arguments engage the constitutional right to reasonable bail, and not to be deprived of that right without just cause (Charter s. 11(e)) and the interpretation of ss. 515 and 518 of the Criminal Code. [42] In 1969, The Report of The Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (Ottawa: The Committee, 1969) commonly referred to as the "Ouimet Report", was finalized and presented to the government. It made a number of recommendations regarding judicial interim release, many of which were adopted by Parliament. The result was the Bail Reform Act, S.C. 1970-71-72, c.

37. In R. v. Bray (1983), 40 O.R. (2d) 766 (C.A.), Mr. Justice G.A. Martin, the vice-chair of the Committee on Corrections, said, at 769: The Bail Reform Act introduced a liberal and enlightened system of pre-trial release. The object of the legislation clearly was to reduce pre-trial detention consistent with securing the attendance of the accused at his trial and the protection of the public interest Lamer C.J.C. adopted this passage in R. v. Morales, [1992] 3 S.C.R. 711 at 725. [43] It was anticipated that the reforms would reduce the number of people kept in custody pending trial. The Ouimet Report cited the unfairness associated with pre-trial detention based on the presumption of innocence, loss of an accused's employment, family relations, the significant effect on the young or first offender in terms of being forced to associate with "sophisticated and hardened criminals", greater difficulty defending him or herself on the charges because of difficulty communicating with counsel, and the simple cost-saving to the public (at 101-102). These same factors are as relevant today as they were over 45 years ago. [44] The historical development of the law of bail in Canada, and the deleterious effects of pre-trial custody are reviewed in R. v. Hall, 2002 SCC 64 at paras. 14-18 (McLachlin C.J.C. for the majority) and at paras. 54-61 (Iacobucci for the minority, but not

dissenting on the historical overview) and Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 at paras. 9-14 [Toronto Star]. [45] Statistics, however, have borne out that recently the numbers of people in pre-trial detention has risen dramatically in Canada: see Lindsay Porter & Donna Calverley, Trends in the use of Remand in Canada (Ottawa: Juristat - Statistics Canada, 2011); see also Cheryl Marie Webster, Anthony N. Doob & Nicole M. Myers, "The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada" (2009) 21:1 Curr. Issues in Crim. Jus. 79; Christopher Sherrin, "Excessive Pre-Trial Incarceration" (2012) 75 Sask. L. Rev. 55. [46] I refer to the development of the law relating to bail, and the current increasing trends in pre-trial detention to establish a context for the interpretation of the legislation. [47] Section 515(1) requires that an accused shall be released unless the prosecutor shows cause why the detention of the person is justified. Where the accused is charged with a "reverse onus" offence, as is Mr. Cheung, the accused must show cause why his detention is not justified: s. 515(6)(a)(vii). [48] Section 518 sets out what the court may consider in determining whether "cause has been shown". This includes, amongst other things, inquiries on oath made by the court or otherwise as the court considers desirable (s. 518(1)(a)) (except the examination of

the accused on the offence unless initiated by his counsel (b)), relevant evidence led by the prosecutor, including relating to the circumstances of the offence (s. 518(1)(c)(iv)), relevant matters agreed on by the prosecution and the defence (s. 518(1)(d)), and any evidence submitted regarding the need to ensure the safety or security of the victim (s. 518(1)(d.2)). Judges may base their decision on evidence they consider credible or trustworthy (s. 518(1)(e)). [49] The essence of the dispute between the parties is the degree to which the defence must take issue with the basis the Crown seeks to rely on to "show cause" for detention and the meaning of credible or trustworthy. [50] I propose to address the arguments as they relate to the duty of the prosecution when showing cause, however, in terms of Mr. Cheung, the onus was on him to establish why he should be released. [51] In R. v. Wu, 1998 CanLii 4378 (B.C.C.A.), this Court, when conducting a review of a bail order pursuant to s. 680, which permits a division of the Court to review an order made under s. 469 of the Criminal Code (murder, treason, etc.), commented on the nature of the reverse onus provisions at paras. 9-10: In an application under s.522(2) of the Criminal Code, the onus is on the accused/respondent to show cause why his detention in custody is not justified within the meaning of s.515(10) (b) and (c). As

stated by Justice Proulx in R. v. Rondeau (translation): Section 522 provides that the superior court judge shall order that the accused be detained in custody unless the accused shows cause why his detention in custody is not justified within the meaning of s.510)10). Parliament posed here as a principle that detention is justified for the two grounds set out in s.515(1). It is for the accused to show cause why his detention in custody is not necessary for the protection or the safety of the public, that he does not pose a serious risk or likelihood of dangerousness. He therefore assumes the complete burden of proof in this regard. (R. v. Rondeau (1996), 1996 CanLII 6516 (QC CA), 108 C.C.C. (3d) 474 (Q.C.A.) at p. 478.) The Court must consider the respondent's past behaviour and his behaviour at the time of the present offence in considering dangerousness, in order to determine whether detention is justified under the secondary ground in considering whether to make an assessment of the likelihood of dangerousness. As stated by Proulx J.A. (translation) in R. v. Rondeau: In the case at bar, the issue concerns the assessment of the likelihood of dangerousness. In my view, several factors must be taken into account in deciding this question, including (1) the nature of the offence, (2) the relevant circumstances of the offence, which may put in issue events prior to and

subsequent to the offence, (3) the likelihood of a conviction, (4) the degree of participation of the accused, (5) the relationship between the accused and the victim, (6) the profile of the accused, i.e, his occupation, his lifestyle, his criminal record, his family situation, his mental state, (7) his conduct prior to the commission of the alleged offence, (8) the danger which the interim release of the accused represents for the community specifically affected by the matter. (R. v. Rondeau, supra, at p. 478.) [52] Bail hearings are intended to be conducted within a short time after an accused's arrest. If the prosecution requires time to "show cause", it can seek a maximum of three clear days, except with the consent of the accused: s. 516 Criminal Code. [53] As a result, at least in British Columbia, almost all bail hearings are conducted by the Crown making submissions and outlining its case. Similarly, the defence response is generally made with oral submissions. To do otherwise would result in large backlogs and chaos in the busy provincial courts, and accused being detained longer while waiting for the bail hearing to complete. [54] This does not mean, however, that there are not instances where the prosecution and/or the defence needs to present evidence. A review of the case law suggests that there is little agreement on when this is required. [55] In R. v. West

(1973), 9 C.C.C. (2d) 369 (Ont. C.A.), the Court considered the then relatively new provisions of the Bail Reform Act. The majority held that if the information was not presented by agreement, then the prosecution needed to produce evidence. The Court concluded that it did not have to address how evidence of "inquiries, on oath or otherwise" were to be made, but suggested that submissions were insufficient. The case was hampered because there was no record of the bail application in the lower court. Also, it was a case involving murder that required the accused to file an application for bail and the prosecution to respond. The requirement for filing evidence seems to flow from a disagreement with the accused regarding the facts. This case seemed to fall off the judicial radar, as a number of subsequent decisions in the lower courts make no reference to it. It appears to be the only decision from a division of a court of appeal. [56] The next decision, relied on by Mr. Cheung, is R. v. Hajdu (1984), 14 C.C.C. (3d) 563 (Ont. H.C.), interpreting what is now s. 518(1)(e), where Barr J. held where "relevant matters" contemplated in s. 518(1)(d) are disputed, Crown submissions may not be relied on. He reasoned that counsel's submissions were, in effect, hearsay evidence. When disputed they could not be relied on because of the rule against counsel both giving evidence and acting in

the same matter and because of concerns over the trustworthiness hearsay. In his view, the exclusive method of testing disputed assertions was through cross-examination of primary witnesses. [57] Thus, this decision held that submissions by the prosecutor were not a basis for a bail hearing. The case has been criticized as highly restrictive: Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010) (loose-leaf), ch. 5 at 50-51. As I will discuss shortly, this decision has not found favour in British Columbia. [58] Indeed, Barr J. refused to follow R. v. Kevork, [1984] O.J. No. 926, a decision of Ewaschuk J. made shortly before his decision where Ewaschuk J. refused to compel a police witness to disclose the name of an informant/witness. Ewaschuk J. discussed the procedure for a bail hearing, concluding that what would usually be inadmissible evidence, such as hearsay, was admissible, that Crown statements were acceptable being both generally trustworthy and credible, that bail hearings should not be become a "mini-trial", and it would be a rare case where the Crown would be required to call viva voce evidence through an investigating officer. [59] While there are a multitude of other cases, I turn to the decisions in British Columbia that have been decided in the context of the practice in this province. [60] Chronologically, the first case I will refer to

is R. v. DiMatteo (1981), 60 C.C.C. (2d) 262 (B.C.C.A. Chambers), a review of a detention order granted in the Supreme Court. The case was put forward by the Crown outlining the gist of the allegations. At a second hearing before the assigned trial judge, the Crown conceded that some of the circumstances were not "strictly accurate" but would be prepared to lead evidence to support the case against the accused. Other decisions have said that this Court "tacitly approved" the procedure, however, it is clear from reading the decision that Craig J.A. was only reciting the circumstances. Thus, the case is not helpful on the issue I need to decide. [61] In R. v. Dhindsa (1986), 30 C.C.C. (3d) 368 (B.C.S.C.), Toy J., (as he then was), considered whether the Crown was required to call evidence, and said, at 370: Since 1972 in this province the lower courts and the superior courts of criminal jurisdiction have consistently permitted both Crown counsel and defence counsel to make assertions as to what the evidence anticipated to be led will be. Where there is a controversy or contradiction, in my experience, affidavits have been tendered and relied upon. If affidavits will not suffice to resolve the conflict, then viva voce evidence could be called with attendant cross-examination. Happily, the situation has not had to go to that last step in any hearing that I have presided over, but I

can see that such a situation could well arise. [62] In that case, which involved the attempted assassination of a government Minister from India, the accused specifically denied one of the allegations made by the Crown, that they were members of the International Sikh Youth Federation. Justice Toy concluded that the Provincial Court judge correctly gave no weight to the Crown's assertions that the four accused were members of that group (at 372). The Crown chose not to "bolster its case" by calling evidence. Toy J. specifically rejected the decision in Hajdu (at 370). [63] In the case of R. v. Atwal, [1986] B.C.J. No. 728 (S.C.), a companion case to Dhindsa, Chief Justice McEachern (as he then was), considered the same question about whether submissions of the Crown were sufficient. He found, at para. 10: I do not think Crown Counsel is giving evidence when he outlines the case. It is appropriate in my view for the Court to act in many matters on the statements of counsel, of which R. v. Dietrich, [1970] 3 O.R. 725 at 738 (Ont. C.A.) is an example. Such practice is expressly authorized on bail applications under Code s. 457.3 (1) [now 518(1)(a)] where the justice is authorized to make "such inquiries, on oath or otherwise ... as he considers desirable". In outlining the evidence he thinks will be advanced, Crown Counsel is assisting the justice in his inquiries. Code s.

457.3(1) (c) [now 518(1)(c)] merely authorizes some specific kinds of evidence to be adduced but is in no way an exhaustive enumeration of what may be placed before the Court. [64] As did Toy J., McEachern C.J.S.C. concluded that he would not consider any allegation of membership or participation in the International Sikh Youth Federation, as evidence was not tendered to support the disputed allegation. [65] In R. v. Vukelich, [1993] B.C.J. No. 3076 (C.A. Chambers), Wood J.A., in considering a review pursuant to s. 520, observed that either the accused or his counsel may provide information to discharge the reverse onus in s. 515(6) of the Criminal Code. Wood J.A. did so in response to an argument that the bail judge erred in the inferences he drew against the accused and requiring the accused to testify, at para. 37: In rejecting as "unsatisfactory" the explanations offered through counsel with respect to the false identifications, the library of crime and the weapons, Drost, J. is said to have concluded the applicant was required to lead evidence to discharge the onus put on him by s. 515(6) (d), a conclusion which it is argued violates his right to remain silent. I do not agree. The reasons of Drost, J. do not support any apparent violation of the applicant's right to remain silent. Neither party below was required to lead evidence. All of the information which came before

the court was provided by counsel. That provided on behalf of the applicant, which addressed the matters of specific concern, was found to be unsatisfactory. If he had any better explanation, it could equally have been offered through counsel. It wasn't, and in the result the onus was not met. [66] Next, I will refer to R. v. Woo (1994), 90 C.C.C. (3d) 404 (B.C.S.C.) where Fraser J. considered all of the above-mentioned decisions, and a number of others. He concluded that the West, Hajdu and Dhindsa decisions were reconcilable and were the correct approach. He found, at 411: I do not see any conflict among West, Hajdu and Dhindsa. They arrive at this result: (1) Where Crown counsel and defence counsel agree as to matters of fact, those facts may be presented to the Court by means of statements of counsel. (2) Where counsel do not agree as to matters of fact (where, in the words of Dhindsa, there is "controversy or contradiction"), evidence must be tendered. (3) If evidence is required, it sometimes may be presented in affidavit form and may include hearsay. [67] I do not see how Hajdu is reconcilable with Dhindsa, however, as will be seen below, my approach differs somewhat, and in any event, there is no need to reconcile these decisions. [68] More recently, and shedding a great deal of light on the process, is the Supreme Court of Canada's decision in Toronto Star, affirmed in

St. Cloud. This case involved a challenge to Criminal Code s. 517, which permits a publication ban over the bail proceedings pending the outcome of the trial. In considering the constitutionality for the ban, Deschamps J. for the majority, discussed the expeditious nature of the hearing, and the kind of evidence that can be tendered at such a hearing, at paras. 27-28 and 30: The mechanisms in place are closely linked. They illustrate the expeditious nature of the bail hearing and the ultimate objective of safeguarding the right to a fair trial. For instance, s. 503(1)(a) Cr. C. requires that a person who is arrested and detained be taken before a justice "without unreasonable delay" and in any event within 24 hours after the arrest. Section 515 Cr. C. provides that the justice shall release the person unless the prosecution shows cause why the detention should be continued. The grounds that can be relied on to deny the person's release are limited. In the short time it has before it must show cause why the detention of the accused is justified, the prosecution has to gather the evidence it intends to use at the bail hearing, which means it may have insufficient time to meet with witnesses and further investigate the matters relevant to bail. Section 516(1) Cr. C. provides that the adjournment of a bail hearing cannot exceed three days except with the consent of the accused; and

orders can be reviewed at the request of the accused provided that the accused has given the prosecution two days' notice (s. 520(1) and (2) Cr. C.). To avoid any delay prejudicial to an accused who ought to be released, while at the same time ensuring that those who do not meet the criteria for release are kept in custody, compromises had to be made regarding the nature of the evidence to be adduced at the bail hearing. There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified. According to s. 518(l)(e) Cr. C., the prosecutor may lead any evidence that is "credible or trustworthy'', which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits. The justice has a broad discretion to "make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable" (s. 518(1)(a)). The process is informal; the bail hearing can even take place over the phone (s. 515(2.2)). As we have seen, Parliament chose to follow most of the recommendations of the Ouimet Report. It is therefore safe to say that

Parliament found sufficient justification for reform in the comments of the Report's authors. They had recommended that, if the accused sought a ban, it be mandatory. In addition, they had recommended that the justice advise an unrepresented accused of the right to a ban. The explanation they had given for these recommendations was that as soon as the accused was brought before the justice, the prosecutor needed to be able to provide arguments sufficiently convincing to warrant detention. It was understood that information so provided would not necessarily be relevant or admissible at trial. The mandatory ban was seen as a measure "taken to prevent prejudicing the accused at his trial by the dissemination of prejudicial matter which would not be relevant or admissible at his trial" (Ouimet Report, at p. 110). It can be inferred from this that the interests to be protected included not only the avoidance of stigmatization of the accused, but also trial fairness [Emphasis added.] Analysis [69] In my view, what ss. 515 and 518 of the Criminal Code attempt to achieve is an expeditious hearing but not at the cost of procedural fairness. As noted in Toronto Star, the judge or justice hearing the bail application has a wide discretion in terms of what he or she will consider. In most cases, this will be accomplished by Crown and defence counsel, as officers of the Court, making

submissions. (I need not today address the process for a self-represented litigant.) If, however, the defence disputes a fact proposed by the Crown, then the Crown should call some evidence, usually in the form of an affidavit of an investigating officer, to support the allegation. If not, the court is entitled to give it less or no weight, as was done in Dhindsa and Atwal. [70] In my view, in order to require the Crown to call evidence at a bail hearing, the defence needs to make a clear and unequivocal dispute or challenge to a particular allegation or circumstance. The defence cannot make a blanket challenge to every fibre of the Crown's narrative. If defence counsel were permitted to require the Crown to call evidence in every case, it would eliminate the expeditious nature of the bail hearing, and cause significant delays in the busy provincial trial courts while mini-trials were held on bail hearings. [71] Contentious aggravating or mitigating factors at sentencing provide an analogous procedure. There, the Crown or defence must clearly and unequivocally dispute a particular fact or facts before the other side is required to call evidence to establish the fact: R. v. Hodwitz, [1985] B.C.J. No. 1676 at para. 7 (C.A.); R. v. Ford, 2010 BCCA 105 at para.

59. Applying this process to bail hearings would put the Crown on notice that there is an issue with respect to the proof of a particular allegation (none are facts as yet), and the Crown can decide whether to call evidence on the point. In such a circumstance, the Crown should not be obliged to call its case, but either file an affidavit or bring viva voce evidence of the investigating officer. In other words, bail hearings should not turn into mini-trials. On the other hand, accused persons should not be detained on allegations that are faulty or weak. In most cases, the dispute would be resolved by an affidavit of one of the officers appending such things as witness statements, statements by an accused, expert or other reports, photographs, and so on, keeping in mind that hearsay evidence is admissible if it is trustworthy or credible. [72] In my view, this approach achieves the appropriate balance between the need for expeditious bail hearings and the accused's right to a fair process. [73] In this case, Mr. Cheung took the position at the hearing that he objected to "every word, every picture, every video". Yet, there was nothing inherently unreliable about any of the evidence tendered at the bail hearing. The Crown produced photographs of the crime scenes, photographs of items seized at Mr. Cheung's house, transcripts of his statements, transcripts of Mr. Gill's

statements along with disclosure of his mental condition, copies of letters and e-mails, and so on. The only thing missing was an affidavit attesting to what the evidence was, as opposed to the Crown's submissions in that regard. At trial, the material may not lead to the same inference sought by the Crown, but there was nothing in the nature of the submissions and the photos and documents filed by the Crown that could have been assisted by evidence. [74] In terms of Mr. Gill, whose statements the Crown relied on significantly, his mental health issues were fully put before the Court. [75] I conclude that there was no error made by the judge in proceeding in the manner he did with the evidence, as found in the appeal book. ii) Are Acts that Were not the Subject Matter of any Charge or Conviction Admissible on a Bail Hearing? [76] Mr. Cheung objects to the bail judge considering the items found in his home and his mother's home including a large quantity of ammunition, more than 20 high-capacity ammunition magazines that are alleged to be prohibited, some loaded with similar ammunition found at the crime scenes, and potentially related to seven different weapons, which were not found. In addition, the police found a loaded handgun, improvised explosive device, night-vision lens, counter-surveillance probe, and almost $10,000 in counterfeit United States money. In addition, the

police found memory cards containing more licence plate numbers unrelated to the victims. [77] Mr. Cheung relies on two decisions where unproven allegations were not admitted on bail hearings: R. v. Boroumand, [2011] O.J. No. 6431 (Sup. Ct.) and R. v. Corbett, 2013 ONSC 3141. There may well be cases, where the evidence is unconnected to the charges, that it would be unjust to admit the evidence. However, this is not such a case. The allegations here involve firebombing and shooting up homes and cars of targeted people. The presence of guns, ammunition, and explosives is very relevant to the bail hearing, as are photos of the licence plates of non-victims, which is consistent with allegations of how the victims were identified. [78] The answer to the question is, in my view, found in Toronto Star, at para. 28 noted above, the relevant part of which is repeated below for convenience: the prosecutor may lead any evidence that is "credible or trustworthy'', which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits. The justice has a broad discretion to "make such inquiries, on oath or otherwise, of and

concerning the accused as he considers desirable" (s. 518(1)(a)). [79] I conclude that the bail judge committed no error in considering the evidence. iii) Was the Wrong Standard Applied to the Analysis of the Secondary Ground? [80] When the bail judge applied the test for detention under s. 515(1)(10)(b), he said that it "gives rise to a substantial possibility of further offences if he is released from custody" (at para. 33 (emphasis added)). This is not the correct test, as the section requires a "substantial likelihood", not substantial possibility. The question is whether the judge applied the incorrect test, or whether he misspoke. [81] Given the extensive submissions and reference to authorities, I doubt very much that the bail judge applied the wrong test, and simply misspoke. However, as will be seen below, applying the substantial likelihood test, I come to the same conclusion. Therefore, if there was an error in the application of the test, it is of no moment in the circumstances of this case. iv) Would Danger to the Public Safety be Prevented or Reduced by Bail Conditions? [82] In finding that the tertiary ground was satisfied, the bail judge said this, at para. 30, as noted above and repeated for convenience: Although the crimes alleged are serious, involving attacks on vulnerable and random victims, I find those considerations are balanced by the offer of sureties

totalling one million dollars, which I find in these circumstances would be sufficient for the purpose of maintaining confidence in the administration of justice, and detention is not justified on the tertiary ground. [83] Frankly, I am not entirely clear on the conclusion reached by the bail judge that the tertiary ground in this case would be satisfied by the offered sureties. The sureties are Mr. Cheung's wife and mother-in-law, who claim to have $500,000 each in property equity. The purpose of the surety for the secondary ground is to monitor the accused's conduct in the community. Ms. Wong lives in Langley, and would call him at home to monitor his conduct. Ms. Cheung's equity in the family home is considerably less that what she deposes, but more importantly, she deposes that the home is being foreclosed and will be sold in May, 2016. Furthermore, she was living in the home where Mr. Cheung had hidden a loaded handgun, the arsenal of ammunition along with other items relating to criminal activity. It could not be said she was a suitable surety. [84] Therefore, I do not find any error by the bail judge in concluding that the sureties would not alleviate the concerns in the secondary ground, despite finding they would alleviate concerns on the tertiary ground. v) Was the Denial of Bail Clearly Inappropriate? [85] Mr. Cheung argues that given he has no criminal record, the

amount of time that has passed since the date of the offences, his family support in the community, the case against him is circumstantial, and that the judge found that the tertiary ground would be satisfied by release with sureties, detention is not necessary. [86] In my view, the case against Mr. Cheung appears strong. A search of his home revealed, amongst other things, a loaded gun, a large amount of ammunition, and an improvised explosive device. Possession of these items weigh strongly towards the substantial likelihood that Mr. Cheung would commit another offence while on bail. I agree with the bail judge's assessment of the circumstances, and conclude he made no error in detaining Mr. Cheung on the secondary ground. Although it is not necessary to do so, I note that the only error in the judge's reasons, in my respectful view, was his conclusion that sureties could address concerns in the tertiary ground. In my view, Mr. Cheung's detention on the tertiary ground is also justified. [87] Therefore, the application to review the detention order is dismissed. "The Honourable Madam Justice Bennett"