R. v. Yoeun, 2011 ABQB 712

Court of Queen ’ s Bench of Alberta Citation: R. v. Yoeun, 2011 ABQB 712 Date: 20111121 Docket: 101559821U2 Registry: Edmonton Her Majesty the Queen - against - Kim Leaung Yoeun _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ [ 1 ] This is an application by Kim Leaung Yoeun (hereinafter “Yoeun”) to review the order of detention made by Assistant Chief Judge Lefever (“the Bail Judge”) on February 17, 2011.

The case was argued before me on April 12, 2011, and continued on April 15 th and April 26 th .

At the conclusion of the hearing on April 26, 2011, I dismissed Yoeun’s application and indicated that written reasons for my decision would be forthcoming. [ 2 ] Yoeun, together with three others, is charged with 13 drug-related offences, including possession of cocaine for the purposes of trafficking; conspiracy to commit the indictable offence of possession of cocaine for the purposes of trafficking; possession of cocaine for the purpose of trafficking for the benefit of/or in association with a criminal organization (s. 467.12 C.C.); possession of Canadian currency of a value exceeding $5,000 knowing that all (or part) of the property (or proceeds of the property) was obtained (or derived directly or indirectly) by the commission in Canada of an offence punishable by indictment (s. 355(

a) C.C.); possession of a loaded prohibited (or restricted) weapon; use (carry, handle, ship, transport or store) a firearm (or prohibited weapon, restricted weapon,

prohibited device, ammunition or prohibited ammunition) to wit: a handgun in a careless manner (s. 86(1) C.C.); and unlawfully produce a controlled substance, to wit: cocaine (s. 7(1) Controlled Drugs and Substances Act ( “ CDSA ” ). All of these offences are alleged to have taken place between October 12, 2010 and December 22, 2010.

Four other alleged associates of Yoeun are charged in a separate 17- count information with similar offences. [ 3 ] The Crown ’ s case against Yoeun and his alleged associates as presented at the bail hearing was described by the Bail Judge as follows (at paras 5 - 8): Based upon information, police authorities embarked upon an investigation in which a General Warrant was issued in October following which police entered the suite on October 14. Upon entry police found a tenancy agreement in the name of Kahn Tran, father of TTran and PTran.

Police observed that the suite had no furniture, no clothing, no toiletries save toilet paper, and no food of any quantity. Police also found a loaded 9 mm handgun wrapped in a black sock hidden in a washing machine, 1700 grams of cocaine in both hard and soft form found in the stove and clothes dryer, cocaine conversion equipment, packing supplies, a money counter, a scale and heat-sealing equipment, and cash estimated to be between $50,000-$70,000. The next step in this investigation was installation by police of a hallway camera outside the suite.

The Crown indicated that there was no prior judicial authorization for installation of this hallway camera. In the period from October 22 to November 24, all accused save Brennan, Phan and PTran were observed on the hallway camera. On November 24, a

Part VI Criminal Code authorization was sought and obtained, resulting in police installing in the suite on November 26 a video camera and audio recording device. During this installation police again observed that the suite had no furniture, no clothing, no toiletries save toilet paper, and no food of any quantity. Police also observed a loaded 9 mm handgun wrapped in a black sock hidden in a washing machine, 7 ounces of cocaine, cocaine conversion equipment, packing supplies, a money counter, a scale and heat sealing equipment, score sheets and cash estimated to be between $20,000-$25,000 hidden in the dryer.

From October 14 to December 22, police amassed approximately 100 hours of video evidence, some of which was played in this bail application. The Crown indicate that in the period from November 26 to December 22, 26 significant events occurred which will form the backbone of the Crown ’ s case.

The Crown states that the entirety of the video will show each of the accused in the suite, some more than others, and that the accused as a group will be observed delivering raw cocaine in kilo quantities, cocaine conversion from raw cocaine to crack cocaine, picking up or dropping off cash, and taking packaged cocaine out of the suite for resale. The Crown do not allege that each accused was observed doing each of these acts. [ 4 ] The bail hearing took place on February 8 and 11, 2011. On February 17, 2011, the Bail Judge issued a written decision denying bail to Yoeun on the second and third grounds.

At the same time, he denied bail to two other associates of Mr. Yoeun, but released three others on strict conditions. The Crown had previously consented to the release of two other accused. On May 6, 2011, Read J. dismissed a bail review brought by Yoeun ’ s co-accused, T.

Tran, one of the others detained by the Bail Judge on February 17, 2011. 0 Yoeun ’ s Position on this Review [ 5 ] Yoeun ’ s application to review the detention order is based on a number of errors alleged to have been made by the Bail Judge, as well as a change in personal circumstances. [ 6 ] Yoeun alleged the following errors on the part of the Bail Judge: 1. The Bail Judge erred in the test he applied on the secondary ground [sic]; 2.

The Bail Judge erred in applying an incorrect standard of proof with respect to Yoeun ’ s reverse onus obligation, specifically that he placed too much emphasis on the seriousness of the offence;

3. The Bail Judge failed to properly weigh the factors set out in s. 515(10) (

c) of the Criminal Code ; 4. The Bail Judge erred in the test that he applied to the tertiary ground [sic] ; 5. The Bail Judge erred in failing to consider whether a carefully crafted release order could satisfy the Court ’ s concerns; 6. The Bail Judge erred in not treating like accused alike; 0 7. The Bail Judge failed to provide adequate reasons in denying Yoeun ’ s release.

Section 520 Criminal Code [ 7 ]

Section 520 of the Criminal Code provides as follows: 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.

(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. Standard of Review [ 8 ] Counsel for the Crown and Counsel for Yoeun take different positions on the appropriate standard of review in a bail review. Counsel for Yoeun relies on the decision of Watson J. (as he then was) in R. v. Q.H.T. , 2004 ABQB 526 . The Crown, on the other hand, relies on the decision of Wachowich C.J. (as he then was) in R. v. Lysyk , 2003 ABQB 256 . The Lysyk , supra , decision, has been followed in a number of subsequent decisions of this Court, including R. v. Ellahib , 2005 ABQB 565 , a decision of Wittman A.C.J.

(as he then was). [ 9 ] In my view, Lysyk , supra, stands for the proposition that a bail review is akin to an appeal. As such, Wachowich C.J., (as he then was) identified the following 4 principles: 1. A bail review hearing is not a hearing de novo notwithstanding new evidence may be admitted; 2. The fundamental purpose of a bail review hearing is to review the decision made by the bail Judge and to assess whether there is any error made which justifies disturbing that order; 3.

The error must be a reversible error as opposed to a harmless error, i.e., one which is an error in principle which affected the conclusion or without which the result would not necessarily have been the same; 4. Where there is error of fact, the reviewing Judge applies a standard of review as to whether the bail Judge had a misapprehension of the evidence such as to make the finding of fact unreasonable in the circumstances. [ 10 ] In R. v.

Q.H.T. , supra, Watson J. (as he then was), while acknowledging the “ guiding authority ” of Lysyk , supra , further expanded the grounds upon which the reviewing judge can vacate or vary the bail decision taken at first instance. Specifically, he found that a reviewing judge can vacate a bail order if “ satisfied that the interests of justice would not be served by the continued detention of the person ” (at para. 48).

Watson J. does, however, specifically endorse two of the so-called Lysyk , supra , principles, namely that a bail review is more akin to an appeal than a trial de novo , and that the reviewing judge should be “ apprehensive ” about interfering with the initial bail order. [ 11 ] In addition to these two authorities, I note that Burrows J. in R. v. McKinnon , 2004 ABQB 604 , found that deference should not take priority to the protection of the accused ’ s Charter right not to be denied reasonable bail without just cause.

He stated (at para. 37): I respect the contrary authority expressed by other judges of this court, particularly Chief Justice Wachowich in Lysyk . But in my view the argument is strong that if, after considering what was before the bail justice, the reasons of the bail justice, and any new information put before him, the reviewing judge concludes that the detention of the accused is not justified, he should vacate the order under review and substitute the order he thinks appropriate. In such circumstances the accused will have succeeded in “ showing cause ” .

In my view judicial deference should not take priority to the protection of the accused ’ s Charter guaranteed right “ not to be denied reasonable bail without just cause ” . [ 12 ] In R. v. Pemberton , 2009 ABQB 107 , a cased decided after Lysyk , supra , Q.H.T. , supra , and McKinnon , supra , Graesser J. expressed similar reservations about the standard of review articulated in Lysyk , supra.

He described the appropriate standard of review in the following terms (at para. 31): In my view, the level of deference to be given by the reviewing judge is high, but not as high as found in Lysyk or Ellahib , but not as low as found in McKinnon . Reviewing judges should be slow to substitute their decision of a bail judge or justice of the peace, but may and should do so when their disagreement reaches the point of discomfort with the decision being reviewed.

He did, however, confirm that “ a reviewing judge should be apprehensive about interfering with a bail judge ’ s order ” (at para. 49). [ 13 ] It is, however, to be noted that, notwithstanding this articulation of a somewhat new standard of review, Graesser J. in fact followed Lysyk , supra and Ellahib , supra. As such, the review he conducted flowed from a finding of errors on the part of the justice of the peace “ under the principles of Lysyk and Ellahib ” (at para. 38 ).

[14] I also note that this issue was considered by the Manitoba Court of Appeal in R. v. Carrier, (MB CA),[1979] M.J. No. 93. In that instance, Matas J.A. stated: In my respectful opinion, the review should not be characterized as an ordinary appeal nor is it helpful to relate a review to

summaryconviction appeals...I am satisfied that Parliament intended the review to be conducted with due consideration for the initial order but,depending on the circumstances, with an independent discretion to be exercised by the review court. [15] With great respect to those who take a different position on this matter, in my view the decision in Q.H.T., supra, andMcKinnon, supra, go too far in defining the scope of the reviewing judge’s role on a bail review. McKinnon, supra seems to stand forthe proposition that a bail hearing is, indeed, a de novo hearing.

Q.H.T., supra, on the other hand, purports to introduce a new basisjustifying review, the “interests of justice.” In my view this new category of review is founded on an erroneous application of theSupreme Court’s decision in R. v. M.(S.H.), (SCC), [1989] 2 S.C.R.446, a decision based on a provision in the YoungOffenders Act that contained language very different from that found in s. 520 of the Code. While this “interests of justice” criteriaappears to have been considered by Veit J. in R. v.

Ritter, 2005 ABQB 710, this new category of review does not appear to have actuallybeen adopted or applied in any subsequent decision of this Court. [16] In my view, the decision of then Chief Justice Wachowich in Lysyk, supra, correctly sets out the standard of review in anapplication brought pursuant to s. 520 of the Code. As such, on an application for the review of a bail order issued by a justice of thepeace or a provincial court judge, the applicant must demonstrate reversible error and/or a material change in circumstance.

Did the Bail Judge err in finding that the Applicant had failed to show cause why his detention on the second ground was not required? 1. The Bail Judge erred in the test he applied on the second ground [17] The Applicant says that the Bail Judge imposed too low a threshold in his analysis of the second ground. Specifically, theApplicant says that the Criminal Code requires that there be a “substantial likelihood” or a “substantial risk” that the accused will re-offend if released from custody.

The Applicant, while acknowledging that the Bail Judge properly identified the proper test, says that, infact, he applied the much lower threshold of a mere likelihood or chance of re-offence. In my view, there is simply no merit to thisargument. [18] The Applicant appears to place considerable emphasis on the Bail Judge’s statement (at para. 28) that “[T]here is no brightline between “substantial risk” and “some risk”.

While this statement, viewed in isolation, might appear to indicate a blurring of thedistinction between the two concepts, a careful reading of the Bail Judge’s reasons in their entirety reveals a proper appreciation of thedistinction between the two. The Bail Judge correctly, in my view, directed himself on the difference between “substantial risk” and“some risk”. In assessing this risk, the Bail Judge considered a number of factors. First of all, he made note of the fact that theApplicant had not been able to secure employment upon release.

He also indicated that, given the Applicant’s education and lack of“viable employment skills”, he would likely only be able to attain employment in a minimum wage position. In addition, the Bail Judge,relying on the Supreme Court’s decision in R. v.

Morales (1992), (SCC), 77 C.C.C. (3d) 91, accepted the Crown’ssubmission that there was a substantial risk that the Applicant would return to the highly lucrative commercial drug trade if releasedrather than committing to a minimum wage type of position. [19] In Morales, supra, Chief Justice Lamer held: ...in Pearson, the reality that persons engaged in drug trafficking tend to continue their criminal behaviour even after arrest was one basisfor concluding that there is just cause to require persons charged with certain narcotics offences to justify bail.

Similarly, if there is asubstantial likelihood that the accused will engage in criminal activity pending trial, it furthers the objectives of the bail system to denybail. After quoting Morales, supra, the Bail Judge stated: A drug trafficker is in the business of selling drugs. A drug trafficker engaged in a commercial drug trafficking operation can quite easily

return to the business of trafficking. His/her victims are endless and always available. [ 20 ] In my view, the Bail Judge carefully considered this issue and applied the proper test. His lengthy reasons, read as a whole, persuade me that he made no error in this regard. 2. The Bail Judge erred in applying an incorrect standard of proof with respect to Yoeun ’ s reverse onus obligation, specifically that he placed too much emphasis on the seriousness of the offence [ 21 ] The essence of the Applicant ’ s argument in this regard is that the Bail Judge failed to properly consider all of the factors set out in R. v.

Smith , 2004 ABPC 22 , and, specifically, that he placed too much emphasis on one of the factors, the seriousness of the offence. The failure of the Bail Judge to properly consider all five of the factors enumerated in Smith , supra , led him, it is contended, to misapply the burden of proof resting on the Applicant to establish that his detention was not justified in the circumstances. [ 22 ] In Smith , supra , Malin P.C.J. identified the factors to be considered in determining whether or not there is a “ substantial risk ” that an accused will re-offend:

i) the criminal record of the accused if any (particularly similar offences, or offences of violence; ii) whether the accused was on bail or probation at the time of the alleged offence; iii) the nature of the offence(

s) and the strength of the evidence on the basis that the more serious the crimes and the greater the probability of conviction, the greater the need for public protection; iv) the personal circumstances of the accused on the basis the more stable the accused, the less likely he or she will resort to crime; and

v) any alleged interference with witnesses, or destruction of evidence. [ 23 ] The Bail Judge, as conceded by the Applicant in this Court, clearly addressed the prior criminal record of Yoeun in finding that the previous convictions were not significant in terms of the issue before him. The Bail Judge ’ s silence on the second and fifth factors reflect, in my view, the fact that they simply did not apply in this instance and not, as the Applicant seems to contend, that he did not take them into consideration.

With respect to the fourth factor, the Bail Judge did make reference to the Applicant ’ s living arrangements prior and subsequent to his arrest and, as previously stated, to his limited education and lack of employment or viable employment skills. I do not accept the Applicant ’ s argument that this factor, properly considered, was favourable to the Applicant. On the contrary, the information before the Bail Judge with respect to Yoeun ’ s lack of employment and viable employment skills was, in my view, a factor properly militating against release.

As regards the Applicant ’ s proposed living arrangements with family, this was, under all of the circumstances, at best a neutral factor. [ 24 ] The weighing of these factors is not a mechanical process, as seems to be suggested by the Applicant. In these circumstances, the Bail Judge properly placed considerable weight on the third factor, the nature of the offences and the strength of the evidence. As such, the Bail Judge ’ s conclusion relative to this issue was not in error simply because three or four of the factors may have favoured release.

The Bail Judge was required to consider all of the factors in determining whether he was satisfied on a balance of probabilities that the Applicant had met the burden resting upon him in this reverse onus situation. The weight to be assigned to any one factor obviously varies from case to case, depending on the circumstances of that case.

A proper reading of the entire reasons reveals that the Bail Judge made no error in this regard. [ 25 ] My conclusion that the Bail Judge made no error in finding that the Applicant had failed to demonstrate that his detention in custody was not required on the second ground effectively disposes of this matter, save for a consideration of whether review is justified on the basis of a material change in circumstances. However, given the Applicant ’ s vigorous challenge to the Bail Judge ’ s findings relative to the third ground, I propose to address these arguments as well.

3. The Bail Judge failed to properly weigh the factors set out in s. 515 (10) (

c) of the Criminal Code [ 26 ] Section 515(10)(

c) of the Code provides that an accused may be detained: ...if the detention is necessary to maintain confidence in the administration of justice, having regard to all of 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. [ 27 ] The Applicant challenges the decision of the Bail Judge on each branch of the test relative to the third ground.

With respect to the first branch, he states that the Bail Judge erred in law in failing to consider whether or not the Applicant ’ s Charter arguments were likely to prevail by deferring all consideration of the admissibility of certain challenged evidence to the trial judge. Citing the decision of Veit J. in R. v. Beyene , 2007 ABQB 474 , the Applicant says that this failure on the part of the Bail Judge amounted to reviewable error. [ 28 ] In my view, the facts in Beyene , supra , are readily distinguishable from the present case.

In that instance, the court was concerned with the warrantless search of a motor vehicle following arrest that revealed a quantity of cocaine, cash and a concealed knife. Veit J. concluded that it was an error to “ give weight to evidence that is likely inadmissible at trial ” (at para. 2). She also found that it was an error to fail to consider the strength or weaknesses of the prosecution ’ s case. During the course of her reasons, Veit J. also commented on the Crown ’ s “ very weak case in support of any objective grounds for arrest ” (at para. 24).

Later, (at para. 26), she stated: “ [A]n individual who is unlikely to be convicted at trial should not be kept in custody pending trial. ” [ 29 ] In this instance, the Bail Judge was clearly alive to the potential Charter challenges to be ultimately addressed at trial. As such, he made extensive reference to the “ strong submissions that the Crown ’ s case had infirmities ” (at para. 56). I also note that the Bail Judge made a further reference in his reasons to the frailties in the Crown ’ s case when dealing specifically with the Applicant.

At paragraphs 81-82: A strong submission was made on behalf of Yoeun related to the weakness in the Crown ’ s case. Yoeun was observed on 2 occasions to bring at least a kilo of cocaine into the suite, cook it and convert it to crack cocaine, packaging some cocaine for street selling and remove cocaine from the suite. This evidence comes from the suite video and the hallway video which will likely be the subject of Charter and other attack at trial.

However, in the absence of my ability to determine at this point that the evidence would be inadmissible, the evidence demonstrates Yoeun ’ s participation in the cooking of 2 kilos of cocaine...

A reasonable and informed member of society who was made aware of the video evidence implicating Yoeun, even taking into account the possible exclusion of some or all of the evidence, would in my opinion have a lowered respect for the administration of justice if Yoeun was granted release. (emphasis added) [ 30 ] In my view, this particular passage confirms that the Bail Judge ’ s assessment of the strength of the Crown ’ s case assumed that some of the evidence might well be found to be admissible at trial.

He came to this conclusion when confronted with the challenges of assessing the strength of the Crown ’ s case during a bail hearing in the face of potentially complex Charter challenges. As will be

recalled, the Bail Judge had previously stated (at para. 56), correctly in my view, that “ [A] bail hearing is an extremely rough venue within which to assess the strength of the Crown ’ s case in any qualitative manner. ” [ 31 ] The Charter issues raised in this case are, in my view, significantly more complex than those raised in Beyene , supra.

While it seems clear that Veit J. in that instance had little difficulty in determining that key evidence was likely inadmissible, and that the accused in that instance was unlikely to be convicted at trial, the assessment of the strength of the Crown ’ s case in this instance was not nearly as simple or straightforward. While the Bail Judge ’ s pronouncements in this regard may not have been as unqualified or direct as those of Veit J., this does not, in my view, mean that he failed to properly consider the apparent strength of the Crown ’ s case.

A full and fair reading of his reasons in their entirety persuade me that the Bail Judge made no error in this regard. [ 32 ] Before leaving this particular point, I would simply add that I believe that Crown ’ s case is strong relative to the Applicant.

While the trial judge will ultimately have to rule on any Charter challenges brought by the Applicant and/or his co-accused, I am of the view that the Crown ’ s case is not substantially weakened by the warrantless installation of the video camera in the hallway of the apartment. [ 33 ] Next, the Applicant challenges the Bail Judge ’ s analysis of the second factor, the gravity of the offence. This argument, simply stated, appears to be that the Bail Judge placed inordinate weight on the gravity of the offences in this instance to deny bail on the third ground.

In my view, a full and proper reading of the reasons reveals that the Bail Judge did not, in fact, simply rely on this factor to deny bail to the Applicant on the third factor. [ 34 ] With respect to the third factor, the circumstances surrounding the commission of the offence, the Applicant says that the Bail Judge did not “ comprehensively consider the circumstances in his reasons ” (Applicant ’ s Brief, para. 34).

At the same time, the Applicant links this alleged failure on the part of the Bail Judge to the Crown having “ explicitly tied the circumstances of the offence into [sic] the gravity of the offence ” (Applicant ’ s Brief, para. 33). [ 35 ] I am of the view that the Bail Judge did, indeed, consider the circumstances surrounding the commission of the offence. My review of the Bail Judge ’ s lengthy reasons reveals extensive reference to the circumstances surrounding this drug operation so as to illustrate the sophisticated nature of this large-scale commercial operation.

He carefully described the comings and goings of the Applicant and his co-accused relative to the apartment during the period November 26 to December 22, 2010, as well as the activities conducted within the unit. As stipulated in s. 515(10)(c)(iii) of the Code , the Bail Judge made reference to the fact that a loaded handgun was found concealed in the dryer of the apartment where this operation was conducted. [ 36 ] I would simply add that I believe that the statutory factors “ gravity of the offence ” and “ circumstances surrounding the commission of the offence ” are clearly related.

While the Bail Judge may not have explicitly and independently addressed these two factors in the portion of his decision relative to the third ground, I do not believe that he was required to undertake an examination of these two matters in isolation of one another. A full and fair reading of his entire reasons reveals a detailed examination of both the gravity of the offence and the particular circumstances of this matter. [ 37 ] The fourth factor relates to the potential length of imprisonment.

The Applicant correctly points out that the Bail Judge did not expressly consider the sentence that Yoeun was potentially facing if convicted of the offences charged. The Applicant seems to invite the Court to speculate as to how much weight was given to this factor in the Bail Judge ’ s ultimate conclusion. Indeed, it would seem that the Applicant is inviting the Court to conclude that the Bail Judge must necessarily have placed undue weight on the potential length of imprisonment given the undue weight he is alleged to have placed on the first factor, the gravity of the offence.

As will be apparent from the foregoing, I do not agree that the Bail Judge placed inappropriate weight on the gravity of the offence. Moreover, I am not prepared to speculate as to the weight that the Bail Judge placed on the length of imprisonment potentially flowing to the Applicant if convicted following trial. [ 38 ] Finally, the Applicant challenges the Bail Judge ’ s application of the “ reasonable and informed person test ” .

At para. 82 of his reasons, he held: A reasonable and informed member of society who was made aware of the video evidence implicating Yoeun, even taking into account the possible exclusion of some or all of the evidence, would in my opinion have a lowered respect for the administration of justice if Yoeun were granted release.

Specifically, the Applicant says that the Bail Judge misapplied this test when he failed to consider that the reasonable and informedmember of society was a person who understood the legislation, the Charter and the functioning of the bail system.

Further, theApplicant alleges that the Bail Judge failed to bestow on this reasonable and informed member of society an understanding of the totalityof the case, including the family support available to Yoeun and the fact that he did not have a relevant criminal record. [39] The criteria cited by the Applicant as allegedly missing from the Bail Judge's reasonable and well-informed person arecriteria emanating from the Supreme Court’s decision in R. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309 and expanded by theCourt of Appeal in R. v White, 2006 ABCA 65.

Having specifically cited and quoted White, supra, it seems clear to me that the BailJudge was fully aware of the knowledge requirements of the so-called reasonable and well-informed person. Moreover, he dealtspecifically in another portion of his reasons with the Applicant's criminal record and family situation.

While it is clear that he did notemploy the precise language of White, supra, in his reasons for decision, under the circumstances I am simply not prepared to accede tothe Applicant's contention that the Bail Judge set the bar too low in applying the reasonable and well-informed person component of thethird ground. [40] More broadly, the Applicant says that the Bail Judge erred in invoking the third ground in this instance. According to theApplicant, relying on R. v.

Hall, supra,, and Pemberton, supra, the third ground is to be used sparingly in rare, unusual, indeed the mostextraordinary cases. [41] I do not propose an exhaustive analysis of all of the instances when courts have invoked the third ground as a basis fordenying pre-trial release. It seems clear from the decided cases dealing with the third ground that it is to be used infrequently, rarely and in exceptional cases.

In The Law of Bail in Canada (3rd Edition) (Thompson Canada Ltd, 2010), Trotter comments “it is not persuasiveto argue that because a judge dares to apply s. 515(10)(c), this somehow equates with an unprincipled application of the law...at itshighest, the Supreme Court said relatively ‘rare’ , not ‘never’. ” [42] Many of the cases which invoke the third ground to justify pre-trial detention involve alleged crime that is horrific and/orinexplicable. Cases involving serious violence and brutality have considered and applied the third ground.

Hall, supra, and White,supra, are examples of high-profile and high-visibility cases that actually engaged the attention of the public. The court in Hall, supra,for example, found that fear permeated the community in which the crime was alleged to have taken place. Similarly, in White, supra,the police investigation and public search for the victim was the subject of a great deal of publicity. [43] Notoriety, publicity and, indeed, widespread community fear are not, however, a pre-requisite to finding that detention isjustified on the third ground.

Chief Justice Winkler described the third ground as follows in R. v. S(B), 2007 ONCA 560: In my view, the elements of horror and community fear that were present in the Hall case are merely two examples of facts that may beconsidered in assessing the circumstances surrounding the commission of the offence. They are not the only two factors.

For example,Chief Justice McLachlin pointed out, at p. 328 of the Hall decision itself that ‘an accused’s implication in a terrorist ring or organizeddrug trafficking might be relevant to whether he is likely to appear at trial, whether he is likely to commit further offences or interferewith the administration of justice, and whether his detention is necessary to maintain confidence in the justice system.’ [44] Since the decisions in Hall, supra, and White, supra, a number of decisions have denied pre-trial release on the third groundin circumstances that did not involve allegations of significant violence and/or brutality.

In my view, what these cases confirm is that thethird ground should not be limited to such situations. In R. v. Tschetter, 2008 ABQB, the third ground was invoked to deny pre-trialrelease in a situation where the accused struck a vehicle lawfully stopped at a traffic light, killing all five occupants. In that instance, thecourt found that the accused’s recklessness in the circumstances provided the foundation for a finding of egregious conduct sufficient tojustify detention on the third ground. Similarly, in R. v.

Perves, 2006 ABPC 122, Judge LeReverend denied bail in part on the thirdground in a situation where the accused faced 105 counts of fraud over $5,000 and several conspiracy offences. LeReverend PCJ held(at para. 42) that “it is not only violent, unexplained crimes...which merit public concern.” [45] Courts in Alberta have consistently referred to drug trafficking as a grave and very serious matter. As such, the third groundhas, in appropriate circumstances, been used to justify pre-trial detention. In R. v.

Pearson, 2009 ABQB 205, Bielby J. (as she then was)held that the accused had failed to demonstrate that release was not necessary to maintain confidence in the administration of justice. Inthat instance, the accused was charged with 22 counts, including possession of cocaine for the purposes of trafficking and possession of a

loaded firearm. In upholding the decision of the Provincial Court to deny release, Bielby J. determined that detention was necessary notwithstanding the fact that the accused had arguable defences. She found that the offences were grave; that the circumstances involved the possession of a loaded firearm; and that the accused was liable to a lengthy term of imprisonment if convicted. In R. v.

Smith , supra , Malin PCJ denied release on the third ground in a situation where the accused faced 13 counts in which he and seven other persons were charged in relation to an operation involving the importation and distribution of narcotics, principally cocaine, in and around the City of Edmonton. Finally in R. v.

Alcantara , 2009 ABQB 519 , Lee J. held that the accused ’ s detention was necessary on all three grounds in a situation involving numerous charges relating to a large cocaine distribution operation. [ 46 ] While the third ground can support detention in appropriate circumstances involving drug trafficking, it is still to be reserved for exceptional cases. Not every instance of drug trafficking will support pre-trial detention on the third ground. In R. v . Pemberton , supra , the accused was charged with possession of over 5 kilograms of cocaine for the purposes of trafficking.

While acknowledging that trafficking in cocaine is a “ serious offence ” (at para. 63), and that the Crown ’ s case appeared to be strong, Graesser J. found that the circumstances of the case did not engage the third ground. He held that the quantity of cocaine was “ not so great as to invoke the fear of imperiling the administration of justice ” (para. 63).

He went on to find that were he to deny bail based on the strength of the case and the quantity of cocaine involved, “ virtually ever person charged with possession of cocaine for the purposes of trafficking, with a related record, would be detained...That was not the intention of Parliament... ” (at para. 64).

Further, he found that the circumstances of the alleged offence were not “ horrific or inexplicable ” (at para. 63). [ 47 ] In this particular case, the Bail Judge found that the evidence flowing from the judicially authorized installation of camera and video recording equipment in the apartment provided “ strong and compelling evidence ” (at para. 56), and that the case for the Crown “ is strong and in some cases compelling ” (at para. 57).

With respect to the Applicant, he held (at para. 82): A reasonable and informed member of society who was made aware of the video evidence implicating Yoeun, even taking into account the possible exclusion of some or all of the evidence, would in my opinion have a lowered respect for the administration of justice if Yoeun was granted release. [ 48 ] In examining the Bail Judge ’ s application of the third ground to Yoeun, it is, in my view, instructive to consider how he applied this same ground to the other accused who were also before him at the bail hearing on February 10 and 12, 2010.

While the Bail Judge did deny release to the Applicant ’ s co-accused T. Tran on the third ground, he found that the third ground could not support the pre-trial detention of P. Tran, Phan and Ros. The differing results reached suggest to me that the Bail Judge properly applied the statutory considerations set out in s. 515(10)(

c) of the Code and did not simply base his decision on either the gravity of the offence or the apparent strength of the Crown ’ s case.

Rather, he considered the relative culpability of the various accused before applying the objective, reasonable and well-informed person test. [ 49 ] Under all of the circumstances, notably the large of amounts of cocaine and money that are involved in what clearly appears to be a large-scale commercial drug operation and the ready availability of a loaded weapon in the apartment, I am satisfied that the Bail Judge did not err in concluding that Yoeun ’ s detention was necessary to maintain confidence in the administration of justice.

The Bail Judge erred in failing to consider whether a carefully crafted release order could satisfy the Court ’ s concerns [ 50 ] The Applicant next challenges the Bail Judge's alleged failure to consider whether a carefully crafted release order could have addressed his concerns on both the second and third ground. While acknowledging the Bail Judge's reference in his reasons to the proposed release plan, the Applicant says that he should have gone further in his consideration of the proposed plan. In my view there is no merit to this argument.

Having acknowledged the terms of the proposed release plan, it is implicit, in my view, that the Bail Judge was not satisfied that the proposed terms of release met his underlying concerns relative to both the second and third grounds. In other words, I am satisfied that the Bail Judge, having concluded that the Applicant should not be released, never reached the point where he was required to discuss in detail possible terms of release. The decision of Veit J. in R. v Alcantara , supra , is persuasive on this point.

The Bail Judge erred in not treating like accused alike [ 51 ] The Applicant next challenges the decision of the Bail Judge on the basis that he failed to accord similar treatment to Yoeun with the treatment given to his co-accused Ros. As will be recalled, Ros was released by the Bail Judge following the show-cause

hearing. According to the Applicant, his alleged level of involvement in the drug operation was all but identical to that of Ros. Moreover, the Applicant says that the only difference between the personal circumstances of himself and Ros was that Ros had secured employment once released from custody. At the same time, the Applicant says that the Bail Judge erroneously treated him as having comparable culpability to that of T. Tran, the clear leader of the operation. [ 52 ] In my view, a proper reading of the decision of the Bail Judge reveals a number of differences between the Applicant and Ros.

First of all, the Bail Judge, after summarizing in some detail the apparent roles of both individuals in the operation, described Ros as being at "the mid- to lower level in the trafficking operation" (at para. 111). He described the Applicant as "appearing to fit in the mid- level for drug trafficking" (at para. 81). I also note that the Bail Judge placed substantial weight on the family support available to Ros, as well as the support offered by Ros' girlfriend. Letters of support from the family and his girlfriend were presented during the bail hearing.

The Bail Judge also placed considerable weight, appropriately in my view, on the fact that Ros had employment waiting for him upon release. [ 53 ] I agree in principle with the Applicant's underlying submission in this regard, namely that similarly situate accused should be treated in a more-or-less similar fashion. However, I am satisfied that the Bail Judge's differing treatment as regards the Applicant and Ros was amply supported by the strength of their respective release plans and, to a more limited extent, their differing levels of involvement in the operation.

The Bail Judge failed to provide adequate reasons in denying Yoeun ’ s release [ 54 ] The Applicant contends that the Bail Judge failed to set out his reasoning in full in denying bail. Specifically, the Applicant says that “ it is unclear at multiple point whether or not he set his mind to the common law tests and statutory provisions that he was required to consider. ” (Applicant ’ s Written Submission at para. 50) [ 55 ] While the Applicant suggests that the Bail Judge made a reviewable error in failing to give “ Sheppard-quality reasons (referring to the Supreme Court ’ s decision in R. v.

Sheppard , 2002, SCC 26 ), he offers little more than this general assertion of error. I am satisfied that the Applicant was not left in any doubt by the Bail Judge ’ s reasons as to why he had been detained in custody. The reasons were, in my view, thorough and comprehensive. Moreover, I am satisfied that the Bail Judge properly informed himself, and properly applied, the applicable law relating to this matter. It follows that I do not agree that there was any error on the part of the Bail Judge in terms of the adequacy of the reasons he provided for denying bail.

Material Change in Circumstances [ 56 ] The Applicant contends that there has been a material change in circumstances since the bail hearing which justify this Court undertaking a review of the previous decision denying bail.

Specifically, the Applicant refers to a new offer of employment that would be available if he were released from custody and the availability of two sureties to supervise him while on release. [ 57 ] A written offer of employment from Sal ’ s Famous Pizza and Donair in Gibbons, Alberta, was presented to the Court confirming part-time employment (28 hours per week) spread over four days (Monday to Thursday) at a wage of $8.80 per hour.

The employment letter also contained an offer from Andy Salame, the owner of Sal ’ s Famous Pizza and Donair, and a friend of Yoeun ’ s, to provide transportation back and forth to Gibbons. The proposed release plan would include the requirement that the Applicant be under house arrest at the home of his parents at all times when he was not working. [ 58 ] During the continuation of the review hearing on April 26, 2011, Mr. Yoeun ’ s mother, La Men, one of two proposed sureties, gave evidence to the effect that she had obtained employment for Yoeun at a construction company in Edmonton.

While Yoeun was not himself aware of the existence of this alternative employment, his counsel were able to confirm that a labourer position was potentially available at $12 per hour, 8 hours per day, 5 days per week. No other information was provided as to the nature of the employment. [ 59 ] Two sureties were proposed, Phally Yoeun and La Men, the sister and mother, respectively, of the Applicant. In my view, neither of these sureties provide the assurance to the Court that they would be in a position to effectively monitor and supervise the Applicant ’ s activities.

His sister, Phally Yoeun, works full-time from 8:00 a.m. to 5 p.m., Monday to Friday and also works a further 20 hours per week on nights and weekends. As previously stated, she does not live at the same residence as the proposed residence of the Applicant. She stated that she would talk with her brother to “ make sure he changes ” and that she visits the family home every other

day. La Men also works outside the home at two different jobs. She works 8 hours per day, 5 or 6 days a week and an additional 4 hours per day, 5 days a week at a second job. She acknowledged that she doesn ’ t have much time to supervise her son. She also admitted that she did not know her son ’ s friends or who he hung around with prior to his arrest. She also testified that she had no knowledge of the prospective job in Gibbons. [ 60 ] The extensive work commitments of both Phally Yoeun and La Men lead me to conclude that they are simply not in a position to provide any real supervision. Ms.

Yoeun also lives outside the family home and thus would not be in a position to have any regular contact with Mr. Yoeun even when not working. In my view, brief visits to the family home every other day, supplemented by telephone calls, does not amount to effective supervision. La Men, while residing in the family home, is away from the home for extended periods of time due to her employment.

Moreover, I note that the lack of knowledge of the Applicant ’ s friends and associates prior to his arrest, combined with an apparent lack of knowledge as to his unlawful activities, suggest that La Men had little, if any, control over his activities and behavior. In the result, I am simply not prepared to accept that either Phally Yoeun or La Men are able to serve as effective sureties in this instance. [ 61 ] Having rejected the proposed sureties, I am of the view that the Applicant has failed to demonstrate that his proposed release plan amounts to a material change in circumstances.

I would simply add that the proposed employment, while promising, is lacking in the type of information that would enable the Court to assess its suitability. Conclusion [ 62 ] The Bail Judge made no error in finding that the Applicant had failed to discharge the onus of establishing that his detention was not required on the second ground. While this finding is sufficient to determine this matter, I would also add that I am satisfied the Bail Judge made no error in his application of the third ground in this instance.

Finally, I am not satisfied that there has been a material change in circumstance so as to warrant a review of the bail decision at first instance. Accordingly, the application is dismissed. Heard on the 26 th day of April, 2011. Dated at the City of Edmonton, Alberta this 21 st day of November, 2011 M. David Gates J.C.Q.B.A. Appearances: D. MacDonald for the Crown

S. Renouf, Q.C. for the Accused