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The Court of Appeal for British Columbia dismissed a s. 680 review of bail pending appeal, confirming denial of release to Kien Trung Pham.
The Court upheld the convictions because the trial judge reasonably concluded, on the totality of circumstantial evidence, that the only reasonable inference was that the appellant had placed the drugs in the upstairs bathroom and thus constructive possession and possession for trafficking were proven; there was no established misapprehension or reversal of burden; the uncertified photocopy of the recognizance was admissible under the common law public/judicial documents exception given corroborating evidence and lack of substantive authenticity challenge, so any procedural unfairness in admi…
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The application for bail pending leave is dismissed because the applicant failed to show the proposed leave application is not frivolous and failed to discharge the burden on public interest: enforceability weighs heavily due to large-scale fentanyl trafficking and outweighs the low interest in reviewability and the applicant's medical condition; therefore detention remains necessary in the public interest.
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The Court held the proffered evidence did not amount to a material change in circumstances: the contextual evidence regarding the August 24, 2020 Disobey Order could and should have been tendered earlier and does not remove concerns about manipulative and threatening behaviour; the untested, unspecified home monitoring system and remote sureties do not materially reduce the risk of reoffence or interference with justice; COVID-19 considerations were not shown to outweigh public safety, and therefore no de novo JIR hearing was warranted and the application was dismissed.
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Application dismissed because the applicant failed to establish the appeal is not frivolous on the record provided, failed to demonstrate he would surrender into custody given prior failure to attend and lack of a concrete release plan, and the public interest (enforceability risk given serious cocaine importation conviction) weighs against release; court nevertheless directed expedition of the appeal timetable if perfected by a deadline.
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The bail release order is revoked because there are reasonable grounds to believe the respondent committed an indictable offence while on release (s.524(3)(b) as incorporated by s.679(6)), and the enforcement interest now outweighs the reviewability interest given the new related charges, the public safety risk posed by the discovery of ammunition and potential bomb-making material on property the respondent accessed, and concerns about the adequacy of proposed sureties; accordingly detention pending appeal is necessary.
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The Court of Appeal for British Columbia refused to direct a bail review under s. 680 of the Criminal Code, finding no arguable material error in the bail denial.
Bail pending a proposed leave application to the Supreme Court of Canada was allowed on terms after the court found the reviewability interest slightly outweighed enforceability.
The applicant satisfied s.679(3)(a) and (b), and on the balance of enforceability and reviewability and given his lack of criminal record, perfect bail compliance, strict house arrest terms and substantial sureties, his detention was not necessary in the public interest under s.679(3)(c); accordingly bail pending appeal was granted in accordance with the draft Release Order.
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Majority: the second bail judge committed legal and factual error by finding a material change in the strength of the Crown's case (shopkeeper evidence was before the first bail judge) and by treating COVID-19 as an automatic material change without assessing whether it was 'relevantly material' in light of the first judge's findings; COVID-19 can be material in proper cases but was not here; accordingly the court set aside the release order and ordered detention pending trial.
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