R. v. Hall, 2012 ABQB 362

Court of Queen ’ s Bench of Alberta Citation: R. v. Hall, 2012 ABQB 362 Date: 20120606 Docket: 120416300U1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Aaron Michael Hall Applicant Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notices: The restriction ended March 8, 2014. On behalf of the government of Alberta, personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit

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Summary [ 1 ] Aaron Hall is charged with trafficking in 18 kg of cocaine having a wholesale value of $1 million. He was arrested on March 1, 2012 and has been in jail since then. Because there are six co-accused, it must be anticipated that a very long period of time, perhaps as long as two years, will elapse before Mr. Hall will actually go to trial on the drug charges. Mr. Hall was denied bail on the second ground by a Provincial Court judge who concluded that, because the evidence at the bail hearing established that Mr. Hall was committed to the criminal community of drug traffickers, Mr.

Hall had failed to establish that his detention was unnecessary for the protection and safety of the public. [ 2 ] In this application, Mr. Hall claims that the bail judge committed errors of law in reaching that conclusion. In particular, he claims, first, that the bail judge misapprehended material facts; specifically, he states that the bail judge relied on events depicted on videos that were not available to the court at the bail hearing and which did not, when they became available, actually correspond with the representations.

Second, he argues that reliance on those videos was in any event inappropriate since the validity of the search warrant which allowed the seizure of that evidence will be contested at trial on the basis that no exigent circumstances justified the police activity prior to obtaining the warrant. Third, he maintains that the bail judge also should not have relied on the January and February videos because the admissibility of that evidence at trial will also be contested on the basis that it constitutes, at best, similar fact evidence which is more prejudicial than probative. [ 3 ] Mr.

Hall also relies on the fact that Mr. Wong, a co-accused alleged by the prosecution to have a more important rank in the drug trafficking hierarchy than Mr. Hall, was granted bail on these charges. [ 4 ] As a separate basis for review, Mr. Hall asserts that there have been three material changes of circumstance since the bail hearing. First, there is a new proposal that the 31 year old accused will reside with his parents. Second, Mr. Hall now produces a concrete offer of post-release employment. Third, Mr.

Hall proposes to increase the amount of cash bail from $10,000.00 to $50,000.00. [ 5 ] If review is granted, Mr. Hall proposes a series of restrictions on his liberty which he characterizes as the equivalent of house arrest. [ 6 ] The Crown responds that Mr. Hall has failed to demonstrate that the bail judge committed any error of law and that the changes in circumstance relied on by Mr.

Hall are not material. [ 7 ] The application for bail review is denied; leave is granted to renew the application upon the making of a more comprehensive proposal to deal with concerns on the second ground. [ 8 ] The standard of review adopted on this bail review is error of law or material change of circumstance. [ 9 ] The reverse onus on bail for persons alleged to be drug traffickers has been justified on two bases - that drug trafficking is systematic criminal activity ordinarily undertaken by criminal organizations which provide those involved in the network access to money and other resources that might create an intolerable risk of absconding and which, because of its lucrative nature, constitutes strong financial incentive to maintain that activity and way of life: see Pearson .

The Supreme Court has recognized that this financial incentive continues even after arrest and release on bail. For that reason, Parliament has stated that a person charged with trafficking in drugs should be jailed until trial unless the accused can establish that imprisonment is not necessary for the protection or safety of the public.

[10] In coming to the conclusion that Mr. Hall had not met that onus, the bail judge was entitled to consider the videos of earlieractivity at a residence connected to Mr. Hall. Even if the search warrant for the residence was obtained in breach of Mr. Hall’s Charterright to be free from illegal searches, the videos might still be allowed into evidence at trial because the videos were created by the Hallsthemselves and Mr. Hall was well aware of their creation: Grant.

Even if the videos are not admitted into evidence at trial, at this stageof the proceedings, because they were created by the Halls themselves, they are credible and trustworthy evidence that can be consideredby a bail judge: s. 518 of the Criminal Code. A similar analysis applies to the argument relating to the potential for trial exclusion of thevideos as similar fact evidence: at this stage of the proceedings, the evidence of the videos is credible and trustworthy.

While it is truethat the report provided to the bail judge about the content of the videos is not fully justified by the videos themselves, the fact of Mr.Hall’s commitment to a sophisticated criminal organization dedicated to drug trafficking is established by the large quantities of cocainewith which Mr. Hall is associated, by the sophisticated modifications that have been made to vehicles to facilitate the trafficking in drugsand by the fact that Mr.

Hall, who bears the reverse onus at the bail hearing, could not produce any evidence of employment outside thedrug trafficking trade. [11] Although parity is not an express factor for the court’s consideration in the decision of whether bail should be granted and, ifso, on what conditions, the equitable component of the common law system has always recognized that equality of treatment is anequitable objective. Denying bail to Mr. Hall when Mr. Wong has been granted bail does not offend the equitable principle of parity:there are important differences between Mr. Wong and Mr. Hall.

First, although the prosecutor states that Mr. Wong is higher in theorganization’s hierarchy than Mr. Hall, the evidence at the bail hearing establishes only that Mr. Hall has more to do with thatorganization than Mr. Wong. Also, Mr. Wong is, relatively, much younger than Mr. Hall and Mr. Wong has not, as has Mr. Hall,apparently abandoned a career in trades to traffic in drugs. Finally, Mr. Wong was willing to post a much higher bail than has beenproposed by Mr. Hall. [12] The new circumstances on which Mr. Hall relies are not material. The proposal that Mr.

Hall would reside with his parentswould ensure that that residence would not be used as a warehouse for drugs; but that is only a minor aspect of the potential return todrug trafficking. In light of the quantity of drugs involved, of the absence of evidence about the financial means and circumstances of theaccused, the increase in proposed cash deposit from $10,000.00 to $50,000.00 cannot be characterized as material. A concrete offer ofemployment from an individual who knows about Mr. Hall’s current circumstances without any information about Mr.

Hall’s financialobligations is not materially different from the information presented at the original bail hearing. Employment in a large urban centrewhere the drug trafficking organization operated is no effective guarantee against resumption of the drug trafficking activity. Cases and authority cited [13] By Mr. Hall: R. v. Lysyk (2003) 2003 ABQB 256 , A.J. 447 (Alta. QB); R. v. T.(Q.H.)

(2004) A.B.Q.B. 526 (Alta.QB); R. v. Tran

(2005) A.J. 244 (Alta. QB); R. v. Pearson (SCC), [1992] S.C.J. No. 99; R. v. Morales (SCC), [1992] S.C.J. No. 98; R. v. Hall 2002 SCC 64 , [2002] S.C.J. No. 65; R. v. Hennessey [2008] A.J. 1521 (QB); R. v.Hennessey [2008] A.J. 1514 (CA); R. v. Link [1990] A.J. 169 (CA); R. v. Ley [1994] A.J. 756 (QB); R. v. Bone [1996] A.J. 1306 (QB);R. v. Singh Garcha [2004] SKQB 92; R. v. Kunst 2011 ONSC 1874 , [2011] O.J. No. 1725; R. v. Pink [2006] O.J. 5816 (Sup.Ct.); R. v. Comrie [2008] O.J. 14 (Ont. Sup. Ct.); R. v. Yaikimishyn [2008] A.J. No. 1587 (ABQB 139); R. v. Pemberton [2009] A.J.No. 181; R. v. Mach [2003] A.J.

No. 1446; United States of America v. Grewal, 2010 BCSC 1286; R. v. Wilcox, 2005 CSC 1785; R. v.Rickey Wong - Action No. 120266804Q1, Oral reasons, Q.B.; R. v. Victor Fei - Action No. 120266804P1, Oral reasons, P.Ct.; R. v.Robert Hall - Action No: 120253364P1, Oral reasons, Q.B. [14] By the court: On the standard of review of bail and bail reviews: R. v McKinnon 2004 ABQB 604; R. v Ellahib 2005ABQB 565; R. v Pemberton 2009 ABQB 107; R. v E.C. 2010 ABQB 46; R. v Yakimishyn 2008 ABQB 188. [15] On the

interpretation of s. 518: R. v Cooper 1999 ABQB 553, affm’d without reference to this issue 2000 ABCA 75; R. vMakhmudov 2007 ABCA 129; R. v White 2010 SCC 21 [16] On whether the evidence of the contested videos would be admitted even if it had been obtained by breaching the accused’sCharter rights” R. v Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 Appendix A: Bail decision on Aaron Hall Appendix B: Bail review decision on Ricky Wong

Appendix C: Bail decision on Fei Appendix D: Bail decision on Robert Hall 1. Background [ 17 ] On March 1, 2012, Aaron Hall was arrested on charges of trafficking in cocaine, possession of drugs for the purpose of trafficking, and being in possession of the proceeds of crime. He is one of 6 co-accused, the others being his brother Robert and Robert ’ s girlfriend, the driver of the vehicle in which the cocaine was found in a concealed compartment, Mr. Steer, and two others who appeared to have been involved in the transaction, Messrs Wong and Fei.

The events of that date are outlined in the bail review decision of this court in the matter of Mr. Wong: see Appendix B. The main stash of cocaine weighed 18 kilograms, having a wholesale value of $1 million and a street value of $3 million.

The evidence at the bail hearing includes evidence that the RAV4 which was carrying the 18 kgs of cocaine had a secret compartment built into the rear portion of the vehicle and that the Dodge Nitro which is registered in Aaron Hall ’ s name had a sophisticated secret compartment which included a hydraulic system to access that compartment. [ 18 ] Aaron Hall is a part owner of what I will refer to as the “ Hall ” residence where certain videos were made.

Although the police recovered documents at that residence which connected Aaron Hall to the residence, it is not clear from the evidence whether Aaron Hall actually resided at that residence or whether he actually resided at another residence. As part of the events on March 1, 2012, claiming exigent circumstances, the police “ secured ” the Hall residence, that is, without a warrant, the police entered the residence and arrested and detained everyone in the residence until a search warrant could be obtained.

Once the warrant was obtained, the police searched the residence and detached garage and seized, among other items, video recordings from two cameras, one of which was posted inside the garage and one of which was posted to view the garage pad at that residence. Videos associated with those cameras recorded events which occurred in January and February of 2012.

The prosecution position is that those events were earlier drug transactions also involving Aaron Hall. [ 19 ] Robert ’ s girlfriend, whose connection with these events appears from the material available on this application to be that she lived in the residence from which the transaction occurred, has obtained bail on minimal conditions. [ 20 ] Robert, whose role in the main transaction, appears to be collateral at best, it being his residence from which the transaction was taking place, and he having a handgun and ammunition in his bedroom which are not linked by direct evidence to the drug trafficking operation.

Indeed, the evidence before the court is that Robert ’ s home had been the target of a break-in at some time prior to March 1, which prompted Robert to install the video cameras. The evidence clearly establishes that Aaron Hall knew of the existence at least of the camera in the garage since he is shown partially obscuring the camera ’ s view with a piece of wood.

Robert Hall was released on the condition that he deposit $10,000.00 and provide a $100,000.00 security, that he reside with his parents, and on certain other conditions essentially creating a form of house arrest. [ 21 ] Fei was denied bail on the second ground; see Appendix C. [ 22 ] Wong was denied bail; however, on bail review, he was granted bail: see Appendix B. [ 23 ] Aaron Hall was denied bail on the second ground: see Appendix A. [ 24 ] Mr.

Hall has presented a series of testimonials from friends who comment on the accused ’ s kind and generous nature; these letters demonstrate a lengthy, and strong, attachment to individuals in this community. [ 25 ] In this bail review application, Aaron Hall advances two bases for a reconsideration of bail.

First, he asserts that the bail judge made errors of law by having been seriously misled on certain facts, namely, the purport of the two earlier video recorded events, that, in any event, the admissibility of those videos at trial will be contested as having been obtained as a result of an improper search warrant and having emphasized the importance of those videos. He also notes that Mr. Wong has been granted bail.

Second, he asserts that there has been a material change of circumstance arising out of the combination of the availability to him of his parents ’ home as a residence while awaiting trial, the availability of confirmed employment, and the increase of the cash portion of a bail deposit from $10,000.00 to $50,000.00.

2. Standard of review on bail review [ 26 ] Mr. Hall maintains that, no matter which standard of review is adopted by this court, he is entitled to a re-assessment of bail and, on that re-assessment, to be granted bail. In other words, he acknowledges that this court might adopt what can be referred to as the Lysyk standard of review.

Because of that position, it is not necessary for me to exhaustively assess the differing standards of review on bail review currently found in Alberta case law. [ 27 ] This bail review was conducted on the standard of review which I consider to be the one most universally recognized in Canadian law, i.e. that parties are only entitled to bail review if they have established that the bail judge made an error of law or that there has been a material change of circumstance.

This is the standard which was outlined by the former Chief Justice in Lysyk , by the current Chief Justice in Ellahib , and by many other judges both in this province and elsewhere in Canada. [ 28 ] I recognize that, in Alberta, other judges of this court have articulated different standards of review: the “ interests of justice ” standard as developed in T.(Q.H.) , the free substitution of discretion as developed in McKinnon , the deference to bail judge but with the possibility of coming to a different conclusion based on some factor other than an error of law or a material change of circumstance as developed in Pemberton and E.C. [ 29 ] The “ interests of justice ” standard may attract some of the difficulties encountered with the somewhat similar language of the “ public interest ” - a standard which has already been struck down by the Supreme Court of Canada as being a “ standardless sweep ” in Morales and Pearson .

It may be that, if this standard were re-worked to aim at miscarriages of justice or innocence at stake standards, such modified standards would pass scrutiny. [ 30 ] In my respectful view, unfettered discretion as the basis for bail review founders for the very reasons that are exemplified in the Smith decision to which the T.(Q.H.) decision refers; in Smith, a series of judges had made conflicting back and forth decisions about whether an individual should be granted bail.

As I have held in Yakimishyn , Smith is, in any event, bad law in Alberta because practice on bail reviews in this province is determined by our Court of Appeal ’ s decision in Chan . However, through its reference to Smith, T. (Q.H.) does illustrate the mischief that arises when an endless series of bail applications attracts an endless variation of judicial discretion. Indeed, it is somewhat ironic that the decision in Smith had the effect of restricting the opportunity of superior court judges to review bail decisions rather than enhancing that opportunity.

Conflicting decisions of the same level of court are, of course, avoided if each successive court adopts the standard of not interfering with the previous decision unless that decision is based on an error of law or unless there has been a material change of circumstance. [ 31 ] The adoption of a standard which defers somewhat to the bail judge but allows a reviewing judge to substitute her discretion also might fall afoul of contemporary understanding of the meaning of “ review ” in Canadian law.

Judicial review, in contemporary Canadian administrative law, only allows a court to substitute its discretion for that of the tribunal whose decision is subject to review if the tribunal has made an error of law in relation to a matter of broad application or if the decision is unreasonable. That application of the notion of “ review ” gives support to the concept that review is a hybrid, allowing correction for errors of law on the one hand, but coupling that with a speedy opportunity for re-assessment in case of a material change of circumstance.

In criminal matters, the standard of review on appeal on what our Court of Appeal describes as “ extricable question of law ” is correctness, (i.e. one which focusses on errors of law) while on questions of fact and mixed questions of fact and law the standard is reasonableness. The application of those concepts to bail review would continue to allow correction where an error of law has occurred, but would prevent changing the decision being reviewed unless that decision were irrational.

The notion of some deference but, without establishing a standard about how much deference or when a reviewing judge can interfere, may not be sufficiently precise to constitute a usable standard of review. [ 32 ] In this context it must also be kept in mind that Parliament has provided a second stream of review of bail denials in s. 525 of the Code.

Although it appears to me that s. 525 is directed more towards the nurture of the Charter right to a trial within a reasonable time than to the Charter right to reasonable bail, the s. 525 hearing imposes on the court a second obligation to ensure that an accused ’ s pre-trial detention is justified in law. I add in passing that this bail review is taking place at the time when a s. 525 hearing would normally be occurring.

[ 33 ] It might be thought that, given the opportunities described above to ensure that no mistakes of law have occurred, that all material changes of circumstance are immediately addressed and that explicit attention be given to the weight given to the right to trial within a reasonable time as well as to the right to reasonable bail, the Lysyk standard does provide an adequate standard for review. 3. Did the bail judge commit any error of law? [ 34 ] Mr. Hall has not established that the bail judge committed any error of law. [ 35 ] The three errors of law which Mr.

Hall alleges were committed by the bail judge were: - relying on evidence obtained by execution of a search warrant in circumstances of alleged exigency when the defence indicates that it will contest the validity of the search warrant at trial, - relying on that evidence when it is, at best, evidence of similar facts which may not be admissible at trial, and - erroneously assessing the actual facts, for example in this case, what can be seen on the video recordings of two events prior to March 1, 2012.

This error occurred because the bail judge relied on submissions from the prosecutor, who himself had not actually seen the videos of the January and February events, but was relying on a description of the videos from police officers. Mr. Hall alleges that this error was then compounded when the bail judge gave excessive importance to the events of January and February 2012 which had been misrepresented.

a) Relying on evidence that may have been obtained pursuant to a Charter breach [ 36 ] Mr. Hall asserts that were no exigent circumstances that authorized the police action on March 1, 2012 in entering the Hall residence without a search warrant and that, without the improperly obtained search warrant, the police never would have obtained the video recordings on which the prosecution relies for the bail proceedings.

He therefore suggests that the evidence of the video recordings could be excluded pursuant to s. 24(2) of the Charter and therefore should not be considered on this bail review. [ 37 ] Even assuming for the purposes of this application that the police did breach Aaron Hall ’ s Charter rights to be free from illegal search and seizure (and for this purpose the court assumes that Mr.

Hall has a sufficient residency connection to the residence to have status to claim a breach and that the prosecution will not be able to establish exigency), that does not mean that the evidence of the January and February videos will be kept out of the trial. [ 38 ] As the Supreme Court of Canada held in Grant , at the third stage of its analysis of the admissibility of evidence obtained as a result of a Charter breach, “ a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.

Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. ” The evidence of the videos is reliable since it is the Halls themselves who created it. Although it may not have much weight when considered on its own, when it is considered in light of the events of March 1, 2012, which clearly established the events depicted on the videos, it may be considered to have some circumstantial value. [ 39 ] Moreover, s. 518 of the Code establishes what may be considered at a bail hearing: Inquiries to be made by justice and evidence 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.1) the justice may receive evidence obtained as a result of an interception of a private communication under and within the meaning of

Part VI, in writing, orally or in the form of a recording and, for the purposes of this section, subsection 189(5) does not apply to that evidence; (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. [ 40 ] The case law has emphasized the need for speed in determining whether an accused should be granted bail has resulted in a relaxation at a bail hearing of the evidentiary principles that apply at trial; by far the vast majority of bail situations are ones in which the Crown opposes an accused ’ s right to bail so that the rules that apply to what can be heard at a bail hearing are mainly of concern to the Crown. Despite the relaxation of evidentiary rules at a bail hearing, a bail hearing is not a free-for-all. S. 518(1)(

a) authorizes only inquiries not under oath if the inquiries relate to the accused. In all other situations, the Code requires that the prosecutor present “ evidence ” , that is facts and opinions provided under oath, except where facts are admitted by the parties (s. 518(1)(d)).

Overall, the only admissibility test for bail evidence is that it be “ credible and trustworthy ” . [ 41 ] Specific consideration of what limits may apply to evidence tendered at a bail hearing has been given in Alberta courts as well as in courts across the country: Cooper , Makhmudov . [ 42 ] Much of the case law dealing with the evidence heard at a bail hearing is actually concerned with a related issue - the publication ban which applies to bail hearings.

Although its focus was on publication bans rather than on the actual content of a bail hearing, in White , the Supreme Court of Canada made these statements about the potential content of a bail hearing:

28 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 [page744] 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)). [ 43 ] In sum, therefore, the bail judge was entitled to assess the January and February videos, even if the videos were obtained as a breach of Aaron Hall ’ s Charter rights.

b) Relying on evidence that may not be admissible at trial [ 44 ] Mr.

Hall asserts that, in any event, since he has not been charged with any events in January or February, 2012, the evidence in the videos is, at best, evidence of similar facts which may not be ruled admissible at trial because the evidence will be considered to be more prejudicial than probative. [ 45 ] The analysis made above with respect to the effect of a Charter breach on this particular evidence applies also to the potential contest concerning similar facts: the evidence could be excluded at trial, but at this stage of the proceedings, because it was created by the Halls themselves, it is credible evidence which can be assessed for bail purposes.

c) Misunderstanding the contested evidence and over-emphasizing it [ 46 ] The third issue raised by Mr.

Hall in relation to the video evidence of January and February 2012 is that the evidence was unfortunately misrepresented to the bail judge and that, in consequence, the bail judge over-emphasized the potential importance of that evidence. [ 47 ] I agree with the defence contention that the evidence was over-sold to the bail judge; there is no doubt that we tend to see what we are looking for and that the police, who were looking at the videos after they had seized 18 kgs of cocaine were looking for, and finding, evidence that would support the subsequent finding.

The prosecutor did not intentionally misrepresent the evidence; this is a situation where the actual evidence was not available either to the prosecutor or to defence counsel at the time of the bail hearing. [ 48 ] Here are some examples of the differences between what the prosecutor told the bail judge and what the videos show: - on the January 18, 2012 recording, the accused is identified as getting out of the front passenger seat of the Dodge Nitro, whereas the video is very grainy and, because of the hoodie worn by the person who exited the vehicle, it is very difficult to make a visual identification of that person; - the individual who got out of the driver ’ s side of the RAV 4 on that date is not shown handing the “ empty gym bag ” to the person who got out of the front passenger seat of the Dodge Nitro; - with respect to the February 12, 2012 recording, the prosecutor told the bail judge “ You can clearly see that the suitcase is now full of white objects (consistent with bricks of cocaine) ” whereas the video shows a nanosecond flash of white which could be a piece of white paper in the teal suitcase; - later on the February date, it is alleged that a male person “ walks back to his vehicle.

His backpack appears to be heavily weighted at this time ” . The angle of the video camera is such that it is not possible to make any visual assessment of the fullness of the

backpack on arrival and on departure; nor is there any evidence, from the gait of the person carrying the backpack for example, suggesting that the backpack is weighted any more heavily when the person leaves that when he arrived.

Incidentally, there is no evidence that the person carrying the backpack returned to a car which had been parked out of camera range. [ 49 ] On the other hand, the videos do show one occasion on which a person leaves a vehicle parked on the garage parking pad with an empty hockey bag and returns to the vehicle with a heavily laden hockey bag in circumstances where the videos of the garage do not show any hockey equipment.

It is also true, of course, that the video relating to the hockey bag does not disclose whether the person carrying the bag went into the Hall residence or into the garage or whether he attended some other location. The video shows nothing of the content of the hockey bag. [ 50 ] As can be seen from the transcript of the bail judge ’ s decision in Aaron Hall ’ s case, the bail judge referred to some of the prosecutor ’ s comments about the January and February videos.

After stating that because he had not seen the videos, it was difficult for him to assess them, the bail judge continued: . . . but it appears to this Court that they are going to be significant evidence in the trial of this matter, and even if they are not, they are a significant factor in the review that I must make with respect to judicial interim release. [ 51 ] Although he did not specifically refer to the provisions of s. 518 of the Code, it is likely that it is those provisions, in particular the provision allowing consideration of evidence considered credible and trustworthy, to which the bail judge was referring. [ 52 ] The only specific reference made by the bail judge to the contested videos while addressing the second ground is: The activity observed by police and confirmed on the video can be pursued on a part- time basis even if a job is secured.

This is not speculation since the three videos considered together suggest that this is the defendant ’ s chosen lifestyle and has been for quite some time. [ 53 ] Because the evidence of the actual videos does not live up to the billing which they were given at the bail hearing, particularly the submission that bricks of cocaine were clearly visible in the teal suitcase, the comments of the bail judge relating to Aaron Hall ’ s chosen lifestyle must be re-examined in light of the actual evidence. In my view, the bail judge ’ s conclusion concerning lifestyle are supported by the actual evidence.

In that regard, I refer to the mere quantity of cocaine that was the subject of the March 1, 2012 transaction; common sense suggests that dealings in this quantity and value of cocaine are only possible after a period of increasing familiarity with, and trust within, the criminal organization which is trafficking in the drugs. Also, the modification to the vehicles involved, including to the Dodge Nitro registered in Aaron Hall ’ s name which was extensively modified to provide a secret compartment, illustrates the sophistication of the drug trafficking scheme. Finally, Mr.

Hall, who has the burden of establishing that he will not be tempted by the financial inducements of drug trafficking to return to that business if released on bail, did not provide any evidence of any other business or employment within any reasonable period prior to March 1, 2012.

d) Parity with Mr. Wong [ 54 ] As noted in the background

section above, Mr. Wong was granted bail by a judge of this court on bail review from a denial of bail by a Provincial Court judge; indeed, the decision that was reviewed in this court is a decision which the bail judge in this matter incorporated by reference into his decision.

In particular, the bail judge here approved the following comments in the Wong original denial of bail: This act, as captured on the self-surveillance video from the garage, speaks to his level of entrenchment within this criminal community of drug traffickers, and it speaks to his commitment to this criminal enterprise, and it speaks to the unlikely prospect that he would be able to extricate himself from this community and its criminal activity if he were released. [ 55 ] The judge of this court who reviewed the initial denial of bail in relation to Mr. Wong set out the reasons which satisfied her

that Mr. Wong had met the onus: see Appendix B . [ 56 ] The first thing to note is that there are important differences between Mr. Wong ’ s situation and that of Mr. Hall. Although the prosecution is of the view that Mr. Wong is in a higher position in the drug trafficking operation illustrated by the evidence relating to March 1, 2012, it did not lead any evidence to that effect at any bail hearing. In the result, on the evidence available to the court, Mr. Hall is much more implicated in a major drug trafficking operation than is Mr. Wong. Also, Mr. Wong, at 24 years of age, is considerably younger than is Mr.

Hall, who is 31; generally speaking, younger individuals are assumed to have a greater capacity for rehabilitation than fully mature adults. Also, Mr. Hall has a recognized trade at which he was apparently successfully employed for many years; there is no comparable information for Mr. Wong. Insofar as Mr. Hall is concerned, therefore, the advantages of drug trafficking apparently outweighed the attractions of making a comfortable living as a tradesman. Finally, Mr. Wong was actually released on conditions that are more severe than the conditions which Mr.

Hall proposes. [ 57 ] On that latter point, I do not share the prosecution ’ s concerns about sureties. While it may be true that a parent makes a poor jailer for an adult child, parents with limited financial resources who pledge their residence to guarantee the good conduct of a child, knowing that a breach by their child will make them homeless, are presumably at least likely to ask to be relieved of status as a grantor of security - which request results in the reincarceration of the accused - if they come to realize that they are unable to guarantee ’ s their child ’ s conduct. Part of the problem facing Mr.

Hall at the bail hearing is that he did not provide any evidence that would allow the bail judge to make a determination of how painful a breach of conditions would be to him or to his parents thereby preventing an assessment of how effective the proposed conditions would be in guaranteeing good behaviour pending the trial.

e) Conclusion concerning error of law [ 58 ] In

summary, for the reasons set out above, the bail judge did not commit any error of law in denying Mr. Hall bail on the second ground. 4. Are there material new circumstances? [ 59 ] Mr. Hall has not established that there are material changes of circumstance since the denial of bail by the bail judge. [ 60 ] The first change alleged to be material is that Mr. Hall now has the opportunity of residing at his parents ’ residence.

This is a change of circumstance in which it is impossible to imagine that his parents would tolerate the use of their residence and garage as a cocaine warehouse. [ 61 ] It is true, of course, that Mr. Hall ’ s parents could not be expected to be their adult son ’ s jailers. For one thing, as the bail hearing itself established, Mr. Hall ’ s father who is a tradesman is sometimes employed outside of Edmonton and would therefore not be always available to oversee his son ’ s activities. Nothing is known about Mr.

Hall ’ s mother ’ s ability to oversee her son ’ s activities while he would be in the parents ’ residence. Indeed, as the many letters of support from close friends and family demonstrate, even people who thought themselves to be close to Mr. Hall were completely unaware of his drug trafficking; this establishes that even sophisticated trafficking in large amounts of cocaine can be accomplished in a relatively covert way. [ 62 ] The mere fact that Mr. Hall would be residing with his parents cannot, in the circumstances here, be considered to be an effective guarantee that Mr.

Hall would not return to drug trafficking: there would be no impediment to his establishing a cocaine warehouse elsewhere. The main value in his parents ’ involvement in bail is that if they are at serious risk of real loss if their son doesn ’ t comply with his bail conditions, they will at least be vigilant to take note of his activities. [ 63 ] The second alleged material change is that Mr. Hall now offers a deposit of $50,000.00 cash, instead of the previous $10,000.00, to guarantee his good behaviour until the trial of this matter.

The difficulty with this proposal is the imbalance between the amount of cash deposit proposed and the value of the one shipment that was intercepted and the greater value of the business of trafficking in cocaine. In order to be effective as an earnest of good behaviour pending trial, the amount of money or surety that would be lost must be high enough to be more than a licence to carry on the contraband trade. In my view, an increase to $50,000.00 is not a large enough increase to create an effective earnest.

[ 64 ] The third alleged material change is that Mr. Hall has now a concrete offer of employment. In my view, this concrete offer of employment is not materially different from the proposal concerning employment that was made at the original bail hearing. Employment in the same large urban area where the drug distribution organization operated does nothing to guard against the resumption of those activities. [ 65 ] In

summary on this point, none of the individual new circumstances, or all of the new circumstances considered collectively constitute a material change of circumstance from the original bail hearing. 5. Conclusion [ 66 ] For the reasons set out above, Aaron Hall has not established that he is entitled to a fresh consideration of bail: he has not proved either that the bail judge committed an error of law or that there are material new circumstances. 6. Leave to re-apply [ 67 ] Although I deny Mr. Hall review of his bail status on the basis of the evidence at this hearing, I allow Mr.

Hall the opportunity to renew his application for bail within 30 days from today ’ s date if he is able to present new circumstances that are relevant to the second ground. [ 68 ] Given that we are at such an early stage of proceedings that disclosure is itself far from complete, and that there may be a preliminary inquiry and that the timing of an inquiry and of a trial will have to take into account not only the availability of court time but also the calendars of at least 7 lawyers, it must be anticipated that a long time will elapse between now and Mr.

Hall ’ s actual trial, and that the total period involved could be as much as 2 years. This is a very long time for a person to be held in custody before a trial. Mr. Hall should be given every opportunity to establish that his continued detention is no longer necessary to assure the protection and safety of the public. [ 69 ] I accept that the reverse onus on a person charged with wholesale trafficking of drugs may be notionally difficult to meet: how can an accused prove a negative?

The lure of relatively easy, big money available in drug trafficking identified by the Supreme Court of Canada as one of the bases for justifying the reverse onus is not a legal factor, but a common sense conclusion. That conclusion is, indeed, reflected in one of the letters of support for Mr. Hall where the writer says: “ I believe he just made a really unwise decision, a quick way to make a buck ” . [ 70 ] Nonetheless, just as Mr. Wong was able to satisfy the court that his pre-trial detention was not necessary, it is possible for Mr. Hall to meet a similar burden.

Heard on the 31 st day of May and 1 st day of June, 2012. Dated at the City of Edmonton, Alberta this day 6 th of June, 2012.

J.B. Veit J.C.Q.B.A. Appearances: Walter Raponi, Tarrabain & Company for Mr. Hall Jonathan Martin, Public Prosecution Canada for the Crown Appendix A April 5, 2012 20 Decision (Bail) 21 22 THE COURT: Thank you. 23 24 The accused, Aaron Michael Hall, is jointly charged with three other individuals that he 25 was in unlawful possession of a controlled substance, namely, cocaine, for the purpose of 26 trafficking, contrary to section 5(2) of the CDS. He also faces a count number 6 on the 27 Information that he trafficked cocaine, contrary to

section 5(1.) of the CDS and that he had 28 in his possession some Canadian currency of a value not exceeding $5,000, knowing that 29 it was obtained by the commission of an offence punishable by indictment. 30 31 Yesterday, I heard the submissions of both counsel with respect to this matter, and I was 32 provided with a number of very helpful cases. 33 34 It is acknowledged by the defence that the accused has the onus of establishing on a 35 balance of probabilities why his detention is not justified.

The Crown opposes his release 36 on all three grounds set out in section 515(10) of the Criminal Code . 37 38 Crown counsel set out a number of factors and allegations of fact in relation to the four - -

39 pardon me -- three grounds. It was noted that the police had the accused and his brother 40 under surveillance and had information from telephone messages that there appeared to be 41 phone calls coming from British Columbia. On March 1st, 2010, which was the 1 important day for the events in this application, the accused was seen by observing police 2 officers to enter his Dodge Nitro vehicle and drive to a gas station. There, he threw out a 3 plastic bag, and police seized some items, including some receipts from Sicamous, British 4 Columbia.

They continued their observations of the defendant and noted that he bought a 5 black duffel bag or gym bag as it was sometimes called and then proceeded to 9[...] - 6 52nd Street in Edmonton, which I understand was largely the residence of his brother and 7 co-accused, Robert Hall. 8 9 I will mention at this point that I have been advised by Crown counsel that charges 10 against two other individuals, Wong and Fei, will be joined with these counts at a later 11 stage of this prosecution.

Those last two mentioned individuals will come up in the 12 course of the facts that I am reviewing and cases that I will refer to later. 13 14 At 1406 on March 1st, 2012, the defendant was observed to drive into the garage at that 15 address. At 1443, two Asian males, namely, Wong and Fei, were observed to drive 16 their -- up in a BMW. At 1500, those two men, Wong and Fei, left the garage.

The 17 police officers formed the suspicion at that stage that a drug transaction had been 18 completed in the garage. 19 20 At 1522, another individual, who may be added to the prosecution at a later stage, by the 21 name of Steer arrived in a Toyota RAV4. It stopped on the garage pad outside the 22 address that I have referred to moments ago. The other accused, Robert Hall, brother of 23 this accused, was seen by police officers to walk by the area of the garage while 24 Mr. Steer was putting a heavily loaded gym bag in the trunk area of his RAV4.

That 25 walking was the extent to which Robert Hall was observed to be involved in these 26 activities on March 1st, 2011, by the observing -- pardon me -- 2012, by the observing 27 police officers. 28 29 Mr. Steer closed the trunk of the RAV4. He was followed by police officers to Capilano 30 Mall. Mr. Steer then was observed to move away from his RAV4 in a very speedy 31 manner. The police pounced on the RAV4 and found the duffel bag in the back. They 32 also located a hidden compartment, which contained 18 kilograms of cocaine or otherwise 33 referred to as 40 pounds or so of cocaine.

I was advised -- and there was dispute about 34 that from the defence -- that the wholesale value of that quantity of cocaine was around

35 $1,000,000 and its retail value would have been around $3,000,000.

I would prefer to 36 refer to the $1,000,000 figure in that I am advised that this was a wholesale level drug 37 trafficking activity, and so that would be the appropriate valuation to keep in mind with 38 respect to the drugs involved here. 39 40 The police were in the process of getting a warrant to enter that residence as well as one 41 that was identified with this defendant at [...] Grandon (sic) Court in Edmonton, Alberta. 1 A search of that latter residence later turned up nothing of significance with respect to 2 these charges. 3 4 Returning then to the residence that is located at 9[...] - 52nd Street in Edmonton, the 5 police ultimately executed search warrants and located some video recordings that are 6 both inside and outside of the garage.

These recorded the activities of this co-accused and 7 Wong and Fei together with the other man I mentioned, Mr. Steer, the driver of a vehicle. 8 I am told that these videos, which were not shown in this bail hearing and apparently 9 have not been made available yet to the defence, contain powerful information and 10 evidence with respect to the activities that were unobserved by the police officers who 11 were outside the garage at the times mentioned on March 1st, 2012. They showed this 12 defendant come into the garage at 1401 that afternoon. Two minutes later, Wong and Fei 13 arrived. Mr.

Aaron Hall took the bag from the -- his Dodge Nitro, which apparently was 14 then given to the two Asians, Mr. Wong and Mr. Fei. Wong is observed on the video to 15 be taking a sample from one of the kilogram-sized packages of cocaine, apparently for the 16 purpose of testing. At 1502, it is alleged that Steer arrived and opened the trunk on his 17 RAV4. He had what appeared to be an empty gym bag and then was observed to be 18 loading that bag into his RAV4. It was at this point, as I mentioned a little earlier, that 19 Robert Hall arrived and walked by.

As I mentioned earlier, this was Robert Hall's only 20 involvement that day in the activities that were observed ⋅ either by the police officers 21 directly or on the videotape that was seized. 22 23 At some point after that activity and, I gathered, after the arrest of Mr. Steer as I have 24 described earlier, when he took off from his RAV4, the police moved in to address arrest 25 this accused and other occupants of the residence that I have been referring to.

The 26 police allege that there were exigent conditions which suggested that their observations 27 and involvement had been disclosed to the occupants of the house. Defence counsel says 28 that those conditions may not have been exigent, and that will be something that will have

29 to be dealt with at a trial of these charges. 30 31 The videos seized are of considerable significance to this bail application. They show an 32 earlier incident on January 18th, 2012, at about 1523 hours. This defendant's Dodge 33 Nitro is observed to arrive at the residence that I have been referring to a few moments 34 ago. The accused was there with his Dodge Nitro, and a Toyota RAV4, presumably 35 driven by Steer, is seen in the video. There's apparent access to a hidden compartment in 36 the RAV4.

This accused is seen to give Steer a bag, which appears to be a heavily 37 loaded bag, and is put into the hidden compartment in the RAV4, and the bag is returned 38 to this accused. 39 40 There is another incident which is shown on the videotapes from February 12th, 2012. 41 Again the accused is there with his Dodge Nitro, and this time, he had a green suitcase, 1 which appears to be light as it was carried.

The defendant was seen to be operating the 2 secret compartment in a vehicle, and a suitcase was retrieved, and it was seen from the 3 videos that there (appeared to be white bricks from which it is alleged that the activity was 4 the transport of cocaine.

An unknown male was also seen to arrive with a light backpack 5 and then leave with a heavily loaded backpack. 6 7 As defence counsel has pointed out, these observations have not led to any charges to the 8 best of anyone's knowledge yesterday, so those two earlier incidents are simply activities 9 which lead to a suspicion that there were continuing drug trafficking activities in which 10 this defendant was directly involved on two earlier occasions, and not having seen the 11 videos, it is hard for me to assess them, but it appears to this Court that they are going to 12 be significant evidence in the trial of this matter, and even if they are not, they are a 13 significant factor in the review that I must make with respect to judicial interim release. 14 15 Crown counsel indicated that with respect to the first ground, that the accused has reasons 16 to flee or hide with respect to these very serious charges.

The Crown notes how strong the 17 evidence is with respect to the 18 kilograms of cocaine that the defendant was clearly 18 seen to be involved with on March 1st, 2012. Crown counsel adds as well that they are 19 looking for a prison term of 12 years should this matter proceed to a trial. The Crown 20 advanced an argument that since the amount of cocaine was worth about a million dollars 21 on a wholesale basis, that the accused could have the means to flee or hide in view of the 22 very substantial amount of cocaine that was involved. 23

24 Defence counsel pointed out that there was not a lot of cash that was seized at the 25 residence, and that is a factor that points away from any direct evidence that the defendant 26 has sufficient funds to flee. Defence counsel noted that the accused is 31 years of age. 27 His mother was present for the bail application hearing yesterday. The letters from family 28 and friends indicate considerable community and family support. Those letters have been 29 marked as V-1 in this hearing.

It was confirmed in the submissions of defence counsel 30 that the defendant had been employed for a number of years, namely, from when he was 31 19 to 27, as a machinist. However, when it came to the question of any T4 slips for last 32 year's employment or tax returns for other years, there were none advanced that would 33 suggest that he has had gainful employment in the last year or two. Defence counsel 34 countered this by noting that the proposed conditions of release would not allow for his 35 release until he has obtained gainful employment.

He also pointed out, as I may have 36 mentioned earlier, that when the police executed a warrant at his girlfriend's residence at 37 [...] Grandon (sic) Court, nothing of significance was found. 38 39 In my view, the risks that the defendant would flee are much reduced by the fact that he 40 has no record, he has family and community support.

In my view, strict conditions of 41 release with the $50,000 cash suggested plus a surety in the amount of $100,000 would be 1 or at least would go far to alleviate the concerns that he may flee from the serious charges 2 and lengthy gaol sentence that he likely faces in this current situation.

Accordingly, I am 3 not denying his release on the first ground, because, in my view, the defence has shown 4 on a balance of probabilities that his detention on the first ground is not justified. 5 6 With respect to the second ground, my colleague Judge Richardson dealt with the 7 application for judicial interim release for the accused Wong, who apparently will become 8 a co-accused later in the prosecution of these charges.

She noted at page 2 of the 9 transcript that I have been provided that the second ground contains a number of 10 considerations under section 515(10), and it relates to, number one, the protection or 11 safety of the public; number two, the protection or safety of any victim; number three, the 12 protection or safety of any witness, and she also noted that Mr. Wong argued that he has 13 legitimate employment and family support. 14 15 I note from reading that transcript that Mr. Wong had some pay stubs for some work in 16 January of 2012. He has had T4 slips showing partial employment in 2011.

Here, as I 17 mentioned earlier, Mr. Hall has no T4 or tax returns to suggest gainful employment for 18 the last couple of years. The letter marked Exhibit V-1 from the co-worker Landsky

19 noted that he worked with the accused for a period of eight years, when the accused was 20 a machinist. The letter does not say how recently that this work together ended.

It is 21 suggested that the accused could get work and that a condition of release could include 22 obtaining a job before release. 23 24 In my view, work is possible for this defendant, but it is a big change to go back to 25 gainful employment and do nothing else but that employment when he has been 26 maintaining one residence with his girlfriend and keeping up what I am told are three 27 vehicles that he owns, including the Dodge Nitro, and he has been maintaining this 28 lifestyle for in excess of one year.

The activity observed by police and confirmed on the 29 video can be pursued on a part-time basis even if a job is secured. This is not speculation 30 since the three videos considered together suggest that this is the defendant's chosen 31 lifestyle and has been for quite some time. 32 33 The accused's brother, Robert Hall, was released, in my view, since his participation in 34 the activities on March 1st, 2012, were less well documented than the observed direct 35 involvement of this accused in the garage. However, there were indicia of drug 36 trafficking activity in Robert Hall's residence.

The accused Aaron Hall apparently 37 maintained a room there, at least judged by certain documents in a basement bedroom in 38 his name. In my view, it is relatively easy for the brothers to resume their alleged 39 sophisticated drug trafficking activities even with a condition of house arrest or a curfew 40 on both brothers. 41 1 I put less stress on the difficulties that the defendant may have in paying back the loss of 2 the million dollars worth of drugs seized by the police. This was commented on by my 3 colleague Judge Richardson with respect to the co-accused Wong.

The evidence suggests 4 that the two brothers Hall plus the two Asian males and the driver Steer were working 5 together, so this appears to be a group loss that may have to be shared between the 6 individuals involved. 7 8 Judge Richardson referred to the risk of making inquiries about the confidential informant 9 who got this -- whose information got this investigation underway. I put relatively little 10 stress on this factor because the accused has no record of violence.

I agree with Judge 11 Richardson when she observed on page 5 of my transcript at line 24: 12 13 Drug trafficking at the wholesale or multi kilo level is qualitatively

14 different from other offences. Most criminal offences are discrete 15 circumstances within which an accused's actions give rise to a 16 criminal offence. In the vast majority of cases, offences are 17 prompted by reasons that can be moderated or controlled by the 18 imposition of conditions that would satisfy the secondary grounds. 19 20 Drug trafficking at the multi kilo level has characteristics that 21 differentiate it from these offences. Drug trafficking, in particular 22 cocaine trafficking, is a coordinated criminal enterprise.

It is a 23 calculated, sophisticated, and commercial pursuit. 24 25 She went on on page 5, line 3: 26 27 Drug trafficking at the multi kilo level is also accompanied by 28 violence and the use of firearms. Quoting again from Chief Justice 29 Lamer's decision in R. v. Pearson , at paragraph 62 , the chief 30 justice at the time quoted with approval with the following passage 31 from a Report on the Battle Against Drugs in Quebec: 32 33 Unlike robbery, sexual assault, and murder, drug trafficking 34 is often wrongly regarded as a non-violent crime.

There is 35 accordingly a certain tolerance for traffickers who give the 36 illusion of being anonymous businessmen hidden among 37 those who are engaged in lawful business. Such an 38 impression is far from reality however when one considers 39 the fierce battles for control of territory and violent action 40 to obtain the money needed to purchase drugs. 41 1 My colleague continued: 2 3 This difference from other, offences is part of the reason why the 4 onus on a bail hearing for these offences shifts to the accused to 5 show cause why his detention is not justified having regard to all 6 three grounds. Mr.

Wong's case is not just at the kilo level. It is 7 at the l8-kilo level in one discrete shipment. Regardless of his 8 ultimate involvement, the self-surveillance of the Hall garage

9 shows that Mr. Wong is accepted and trusted enough by the 10 people who own the 18 kilograms of cocaine for him to handle the 11 product, remove a sample of the cocaine and depart with it in his 12 possession, and to be present in the garage when the entire 13 18-kilogram shipment is there.

This act, as captured on the 14 self-surveillance video from the garage, speaks to his level of 15 entrenchment within this criminal community of drug traffickers, 16 and it speaks to his commitment to this criminal enterprise, and it 17 speaks to the unlikely prospect that he would be able to extricate 18 himself from this community and its criminal activity if he were 19 released. 20 21 My colleague denied the release of Mr.

Wong on the second ground, and I note that he 22 had at least some job activities that he was able to document for that hearing which seem 23 to lead up to very close to the time of this offence on March 1st, 2012. 24 25 In my view, this accused poses a substantial risk that he will continue to be involved in 26 his chosen lifestyle that is alleged to be drug trafficking activities, and continued 27 involvement imposes a grave risk, in my view, to the community in which we all live. 28 Accordingly, I deny his release on the second ground. 29 30 Unlike my colleague Judge Anderson, I think it is appropriate that I review the third 31 ground.

He dealt with the release of the what may be co-accused male by the name of 32 Fei. I understand that he felt that he need not deal with the third ground because he 33 denied bail on the second ground. I think it is worthwhile to consider the third ground so 34 that my view is a part of the record in relation to this situation. 35 36 Crown counsel reviewed the four criteria set out in section 515(10) (c). He noted that the 37 first factor involves the apparent strength of the Crown's case.

I agree with him that it 38 appears to be very strong, particularly with respect to the alleged video that is available to 39 show the drug dealing activities within the garage at the Hall residence at the hours 40 mentioned on March 1st, 2012. 41 1 Second, there can be no doubt that the gravity of this offence is very serious. 18 2 kilograms of cocaine with an apparent wholesale value of a million dollars is very serious 3 in terms of its implications for this community.

4 5 Third, the circumstances surrounding the commission of the apparent offences here does 6 not include the use of a firearm. However, a pistol, I am told, together with a small 7 amount of ammunition was found in Robert Hall's residence, which also appears to have 8 been a part-time residence for this accused.

I bear in mind the evidence, which I think is 9 very supportive of the Crown's position, that there were the two earlier incidents of 10 apparent drug trafficking on a substantial scale on the two earlier dates that I outlined a 11 few minutes ago. 12 13 Fourth, with respect to a lengthy term of imprisonment, I am satisfied that on the cases 14 that have been brought before this Court on a number of occasions, it will certainly 15 involve a term of imprisonment of three years or more and that the 12 years suggested by 16 the Crown is not beyond the realm of possibility. 17 18 Defence counsel noted correctly that Ms.

Collins, one of the four co-accused on the first 19 count that I have referred to, was released, and she apparently had taken some steps to try 20 and discourage her boyfriend, Robert Hall, from having this accused at their residence, so 21 the suggestion is that she was a very substantially less involved individual, and I cannot 22 say more than that given the rather sketchy information with respect to her involvement. 23 24 With respect to the question of parity, I note that the two individuals who will be joined 25 in this prosecution at a later stage, namely, Wong and Fei, were both denied release. 26 They, too, had little or no criminal activity recorded in their past.

I found the decision by 27 Mr. Justice Gates in R. v. Yoeun from 2011 to be quite helpful here. I note that 28 Mr. Yoeun had some criminal convictions in his past, but they were for unrelated matters. 29 Mr. Justice Gates noted at paragraph 45: 30 31 Courts in Alberta have consistently referred to drug trafficking as 32 a grave and very serious matter. As such, the third ground has, in 33 my appropriate circumstances, been used to justify pretrial 34 detention. In R. v.

Pearson , Justice Bielby held that the accused 35 had failed to demonstrate that release was not necessary to 36 maintain confidence in the administration of justice. In that 37 instance, the accused was charged with 22 counts, including 38 possession of cocaine for the purposes of trafficking and 39 possession of a loaded firearm. 40 41 She upheld the Provincial Court decision denying release. She noted that the accused,

1 Yoeun, had some arguable defences; however, she thought that the charges were grave 2 and that the circumstances involved the possession of a loaded firearm. I put some stress 3 on that factor because. In my view, it is clear that Pearson deals with more serious 4 circumstances in that the possession of a loaded firearm was present, otherwise she 5 observed that a lengthy term of imprisonment would follow a conviction and noted that 6 there is another case, Alcantara , where her colleague, Mr.

Justice Lee, had denied the 7 accused detention on all three grounds in relation to a large cocaine distribution operation. 8 She also noted that a drug trafficking operation that involved 5 kilograms of cocaine did 9 not lead her colleague Justice Graesser to deny the defendant's release on the third 10 ground. 11 12 At paragraph 49, Mr. Justice Gates commented in relation to Mr.

Yoeun: 13 14 Under all of the circumstances, notably the large amounts of 15 cocaine and money that are involved in what clearly appears to be 16 a large-scale commercial drug ⋅ operation and the ready availability 17 of a loaded weapon in the apartment, I am satisfied that the bail 18 judge did I not err in concluding that Yoeun' s detention was 19 necessary to maintain confidence in the administration of justice. 20 21 I have taken some time to refer to the case of R. v.

Yoeun and cases which were also 22 commented on in that decision because the Crown has made out a surprisingly strong case 23 with respect to the third ground. I say surprisingly strong since it is a rare case where a 24 defendant will be unsuccessful showing that his release is not justified in relation to the 25 third ground. Given the strength of the Crown's argument here supported by R. v. Yoeun 26 and the cases that are referred to there, the only points that move this particular 27 application in the other direction are the factors which have been brought forward by 28 defence counsel.

These include the fact that this defendant has no record, that he has 29 family and community support. Second, there was no loaded firearm in the house, 30 although there was an unloaded firearm with ammunition readily available; however, there 31 also is no record here which would change the balance. 32 33 So with respect to the third ground, in my view, the defence has succeeded, just barely, in 34 showing on a balance of probabilities that it would not be justified to deny release to this 35 accused with respect to the third ground.

I note that the public could lose confidence in 36 the administration of justice where either this accused or his brother arranged to videotape

37 their apparent drug trafficking activities in Robert Hall's residence and probably a 38 part-time residence of this accused. This would certainly be so because the public would 39 bear in mind that this activity involved the transportation of approximately a million 40 dollars worth of cocaine.

Nevertheless, were the public to be aware that the defendant 41 had no record, had some faint prospect of a defence plus family support, reasonable 1 people would agree that it would not be appropriate to deny his release on the third 2 ground. 3 4 To sum up then, I am not denying his release with respect to the first and third ground, 5 but I do deny his release with respect to the second ground. Appendix B May 3, 2012 13 Decision 14 15 THE COURT: This is a review of the decision of the 16 Honourable Provincial Court Judge Richardson of March 23rd, 2012, to deny a pre-trial 17 release to Mr.

Wong who is charged with possession of cocaine for the purpose of 18 trafficking. The denial of release was based solely on

section 515(l0)(

b) of the Criminal 19 Code that Mr. Wong's pre-trial detention is necessary for the protection or safety of the 20 public, including any victim of or witness to the offence baving regard to all of the 21 circumstances, including any substantial likelihood that he will, if released, commit a 22 criminal offence or interfere with the administration of justice. 23 24 The Crown's case is largely based on the recording seized by police from a private video 25 camera installed in the garage of an Edmonton residence owned by one of the co-accused. 26 I viewed the video recording. Identification was not in issue for the purpose of the bail

27 review. The video shows a co-accused identified as Aaron Hall driving a vehicle into the 28 garage and shutting the door. He places a piece of wood up against the location of the 29 camera, which only succeeds in partially blocking the view of the inside of the garage. 30 He then removes a duffel bag from the vehicle and places it on the floor near the back 31 passenger side of the vehicle. 32 33 Mr. Wong is seen entering the garage with another male identified as the co-accused Fei. 34 Wong looks into the duffel bag.

Fei removes a package conceded by defence to contain 35 approximately one kilogram of cocaine from the duffel bag, and appears to be opening it. 36 All three males then lean over the package several times appearing, according to the 37 Crown's theory, to smell it. At one point, Aaron Hall hands Mr. Wong what appears to 38 be a baggy containing a white substance which Mr. Wong places in his jacket. Minutes 39 later, he is seen holding a baggy and making motions that are consistent with placing 40 cocaine in the baggy from the package removed by Mr. Fei from the duffel bag.

He, 41 along with Fei, are shown the back of the vehicle by Aaron Hall, consistent with the 1 Crown's theory that he is showing a secret compartment built into the back area later 2 discovered by police. 3 4 Mr. Wong is seen to put on a glove and return a package from the area where a package 5 had been placed by Mr. Fei to the duffel bag on the garage floor. Mr. Fei and Mr. Wong 6 then leave the garage. 7 8 A little over an hour later, the video records the entry of the co-accused Steer into the 9 garage.

A duffel bag that appears to be the duffel bag seen on the garage floor by the 10 vehicle is picked up by Aaron Hall and placed near the garage door. Steer picks it up and 11 leaves. Steer is subsequently arrested and 18 kilograms of cocaine packaged in 12 approximately one-kilogram amounts are found secreted in the vehicle he is operating. 13 Mr. Wong turned himself in a few days later after a warrant was issued for his arrest. 14 15 The Crown referred to police intelligence relating Mr.

Wong to drug activity, that he is a 16 cocaine trafficker working with Fei and acting as Fei's “ food boss ” helping him to supply 17 single shipments from Vancouver to Edmonton in 10 to 20-kilogram amounts. There 18 were no further particulars provided as to the nature and reliability of the source of this 19 information. Crown counsel referred also to Mr. Wong having previously been stopped 20 on a traffic stop while operating an expensive Lexus vehicle, however. there was no

21 evidence relating to ownership provided. 22 23 All co-accused except the owner of the residence, Robert Hall, Aaron Hall's brother, 24 along with a female have been denied release in the court below on the secondary ground. 25 26 This is a reverse onus situation, in that the burden is on Mr. Wong to show cause why his 27 detention is not justified on one or more of the three grounds set forth in section 515(10) 28 of the Criminal Code.

The Court must also consider the standard of review, there being 29 no clear appellate direction as to the review function of this Court pursuant to s. 520 of 30 the Criminal Code. I am satisfied, however, that whether the standard of review is akin 31 to the stricter standard applied in Regina v.

Lysyk, 2003 ABQB 256 , [2003], A.J. 447, that is, akin to 32 appellate review, or whether a reviewing judge is free to substitute her discretion in 33 appropriate cases regardless of whether there are new circumstances or any palpable errors 34 of laws, the standard of review is met here. 35 36 I find that the learned trial judge made reviewable errors and also that there are new 37 circumstances that justify the Court reviewing Mr. Wong's detention. First, there were 38 errors of fact made, although this only became clear as a result of further evidence 39 adduced at the review stage.

There was conflicting evidence as to where Mr. Wong was 40 residing at the time of his arrest, a T4 slip in evidence indicating his father and 41 stepmother's address and a letter from his father and stepmother, on the other hand, 1 indicating in a somewhat tangential fashion that he was living outside the home. This has 2 since been clarified by affidavit evidence, and one premise upon which the court below 3 found that Mr.

Wong's circumstances really were no different from the time of his arrest 4 to the initial bail hearing as to living arrangements and employment is not correct. 5 6 This clarification is important. While the court below questioned how “any parent can 7 control the movements of a 24-year-old working part-time and living at home”, this was 8 based on a faulty premise that he could not be controlled by his parents while living at 9 home at the time of the alleged offence. It appears that this was not the case.

I agree 10 with defence counsel's submission that the lack of specificity as to the precise nature and 11 length of all of the accused's previous jobs when making submissions at the hearing in the 12 court below would not justify a conclusion that he lacked a consistent work history or that 13 none of his employment activity was anything “in the vein of a progressively responsible 14 full-time activity” according to the court below. However, no further particulars were 15 given on the review application as to Mr. Wong's employment background, and his janitor

16 position at the time of his arrest was part-time only. This justifiably gives rise to 17 concerns which are not entirely speculative about how he spends his spare time given his 18 rental costs and his part-time work yielding less than enough to cover those costs, and 19 thus how he will continue to spend his spare time. 20 21 The learned bail hearing judge expressed concern about a lack of family presence, 22 therefore support at the bail hearing, while noting the presence of counsel for Mr. Fei in 23 the courtroom. She commented that “ this speaks volumes about who is closely connected 24 to Mr.

Wong and who is most interested in the outcome of his bail hearing. ” This does 25 suggest that she had concerns about the true extent of family support. That issue has 26 since been clarified. While no family member attended the bail hearing according to the 27 information before this Court, there was a letter of support before the court below, and 28 family members did in fact attend court for the decision. Family support is further 29 buttressed at the review stage by an offer of a substantial surety. 30 31 Of concern as well were inferences drawn in the court below from Mr.

Wong's presence 32 and actions in the garage and police intelligence that I find contributed to the decision of 33 the court below to deny release. While there is evidence to support a comfort level with 34 Mr.

Wong being present, handling and removing cocaine from a larger source and being 35 in the presence of very large quantities of the substance and viewing the vehicle in which 36 it was transported, and a concern that he is in the upper echelons of a commercial 37 trafficking pyramid, this led to her recital of a number of other concerns. 38 39 First, that he will be called to account for the loss of 18 kilograms of cocaine by its 40 owner and will be forced to return to trafficking activities to make good the loss; second, 41 that given the amount of the financial loss and the police. use of an informant in their 1 investigation, Mr.

Wong will make inquiries as to the identity of the informant which will 2 put the latter's life at risk; and third, that his level of entrenchment within the drug 3 trafficking community is such as to render unlikely any prospect of extricating himself. 4 5 While these are risks associated with any high-level commercial trafficking and justify the 6 onus being on the accused to show cause why his detention is not justified, care must be 7 taken to link these concerns with the evidence before the Court and also with the 8 proposed release plan that addresses the secondary ground concerns.

In this case, the 9 evidence of Mr. Wong's entrenchment in the drug culture was rather generic, as I earlier 10 pointed out, that is, the evidence of the officers who provided information in relation to

11 his earlier drug associations. However, I am of the view that the court below was entitled 12 to consider the comfort level evident from the interactions on video in the presence of a 13 very large quantity of cocaine whose street value was upwards of a million dollars. 14 However, there was no suggestion that the informant used by police implicated Mr. Wong 15 in trafficking activities. His information related to the Hall brothers. There is no 16 evidence of any prior connection between the Hall brothers and Mr. Wong or Mr. Wong 17 and Mr. Steer. 18 19 There is no evidence that Mr.

Wong made known to anyone any intention to pursue an 20 informant. Mr. Wong has no criminal record. He turned himself into police.

In that 21 factual matrix, I conclude that the provincial court judge erred in elevating risks and 22 dangers of re-offence and interference with the administration of justice associated with 23 high-level drug trade to a substantial risk, particularly in light of the error, which I do not 24 necessarily attribute to her, relating to his living arrangements, the lack of evidence 25 relating to his actual role in the drug transaction such as to raise questions as to his 26 responsibility for any loss, and her failure to relate the specifies of his proposed release 27 plan to these risks which would prevent contact with co-accused and would significantly 28 curtail and provide means to police his movements independent of his parents' 29 supervision. 30 31 I also note that Mr.

Wong is co-accused on an Information with four others which likely 32 increases the complexity of the prosecution and lengthens the pre-trial period, it being 33 necessary to find time for preliminary inquiry and trial available to all counsel. 34 35 I also find that there are new circumstances that justify this Court reviewing Mr. Wong's 36 detention. While an offer of an unspecified cash bail was made in the court below, there 37 was no offer of sureties made before the learned provincial court judge. Since then, 38 Mr.

Wong's stepmother has offered the entire equity in the family's residence estimated 39 about $252,00 based on a municipal tax assessment. Cash bail is proposed in the 40 amount of $50,000. These forms of security against breach sufficiently address the 41 dangers and risks that Mr. Wong will re-offend or interfere with the administration of 1 justice while on pre-trial release. 2 3 No concerns such as to justify detention on the first ground were raised by the Crown, nor 4 was the Crown calling for Mr. Wong's detention on the third ground.

While the onus is 5 on the accused to show cause why his detention is not justified on all three grounds, he 6 turned himself into police, has no prior record, will consent to the surrender of his

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