R. v. Jeon, 2020 NLSC 71

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Jeon , 2020 NLSC 71 Date : May 11, 2020 Docket : 202001G2280 Her Majesty The Queen v. Hye Young Jeon Before: Justice Daniel M. Boone Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 7, 2020 Date of Oral Judgment: May 11, 2020

Summary: The Accused applied for a review of an Order denying her judicial interim release. The Court found that the continued detention of the accused was justified in order to protect the safety of the public. The proposed surety was not suitable to reduce the risk to public safety. The Court dismissed the application. Appearances:

Elaine M. Reid Appearing on behalf of the Crown Stephen P. Orr Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. St-Cloud, 2015 SCC 27 , [2015] 2 S.C.R. 328; R. v. F. (D.P.) (1999), (NLCA), 183 Nfld. & P.E.I.R. 166, 556 A.P.R. 166 (Nfld. C.A.); R. v. Moss, 2003 NLSCTD 110; R. v. Rich, 2016 NLTD(G) 87; R. v.Dicker, 2020 NLSC 53; R. v. GTB, 2020 ABQB 228; R. v. Morales, (SCC), [1992], 3 S.C.R. 711; R v. Noray, 2016NLTD(G) 148; R. v. Antic, 2017 SCC 27; STATUTES CONSIDERED: Cannabis Act, S.C. 2018, c. 16; Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 TEXTS CONSIDERED: Steven Penney, Vincenzo Rondinelli & James Stribopoulos, eds., Criminal Procedure in Canada, 2nd ed.(Toronto: LexisNexis, 2018) REASONS FOR JUDGMENT Boone, J.: [1] Hye-Young Jeon is charged with distributing and/or selling illicit cannabis, contrary to sections 9(1) and 10(1) of theCannabis Act, S.C. 2018, c. 16, with possession of property (Canadian currency) obtained by crime, contrary to

section 355(

a) of theCriminal Code, R.S.C. 1985, c. C-46, and with laundering the proceeds of crime, contrary to

section 462.3191)(

a) of the Criminal Code. [2] The Crown laid the charges after an extended police investigation of the activities of the accused. The Crown alleges that theaccused made several short turnaround trips by air between British Columbia and Newfoundland during a period of several months fromNovember 2019 to February 2020. The Crown further alleges that the nature of the behavior of the accused on these trips was consistentwith the behavior of a drug courier. When the police arrested the accused at the airport in St.

John’s, her luggage contained $78,000 inCanadian currency in vacuum-sealed bags, and the luggage also allegedly had an odour of marijuana. [3] Ms. Jeon is a 36-year-old citizen of South Korea. She does not have a criminal record. Although she has been in Canada sinceMay 2019 under a student visa, she never enrolled in the college she said that she came to British Columbia to attend. She has noconnection with this Province. Her student visa will expire in July 2020. [4] Ms. Jeon was charged and taken into custody following her arrest.

Gorman, PCJ denied her bail in a decision that followed ahearing held on April 21, 2020. [5] Ms. Jeon now applies to this Court under s. 520(7)(

e) of the Criminal Code for judicial interim release. I have determined thather application should be dismissed, and I will now explain my reasons for that decision. PRINCIPLES OF BAIL [6] The right not to be deprived of reasonable bail without just cause is protected by the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 11(e).

The SupremeCourt of Canada has confirmed in several recent cases that pretrial detention of accused persons is the exception and release pending trialis the default outcome. [7] The principle that release pending trial is the usual outcome of a bail hearing is now codified in the Criminal Code: 493.1 Principle of restraint In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at theearliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonablypracticable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as thecase may be. [8] The Criminal Code sets out the grounds pursuant to which pretrial release from custody may be denied:

515(10) Justification for detention in custody For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 9 ] In the jurisprudence about bail, the necessity to ensure attendance in court has been termed the primary ground to justify pretrial detention; the protection of the public from the likelihood that the accused will commit another crime if released is known as the secondary ground; and maintenance of confidence in the administration of justice is called the tertiary ground.

Notwithstanding this nomenclature, there is no hierarchy of grounds. Rather, each of the criteria set out in s. 515(10)(a)(

b) and (

c) are alternative and independent grounds on which bail may be denied. INITIAL BAIL DECISION [ 10 ] A bail hearing was held before Gorman, PCJ on April 21, 2020. Because the charges against Ms. Jeon included indictable offences and she is not ordinarily resident in Canada, s. 515(6)(

b) imposed the onus on her to demonstrate that she should be released. [ 11 ] In extensive reasons, the Provincial Court Judge decided that Ms. Jeon should not be released pending trial. He found that there was a genuine risk that the accused would fail to appear in Court, but that the imposition of conditions including especially the surrender of her passport would lower that risk to the point that her detention was not required on the primary ground.

However, he found that the pretrial detention of the accused was required on both the secondary and tertiary grounds. [ 12 ] In respect of the secondary ground, the Provincial Court Judge found as follows: • Offences involving the sale of illegal drugs and the diversion of large sums of money to illegal activity endanger the public; • The allegations against the accused are that she was involved in highly organized, planned, and sophisticated enterprise; • The accused does not have any known source of income; • The proposed surety provided no explanation as to how he would access the proposed $10,000 cash surety or why he would risk it on behalf of the accused when the evidence did not support a finding that the surety was close friends with Ms.

Jeon or that he would supervise her compliance with conditions imposed on her release. [ 13 ] Consequently, the judge concluded that there was a substantial likelihood that Ms. Jeon would commit further offences involving the sale of illegal drugs.

Further, he was not satisfied that the proposed surety or the imposition of conditions reduced that likelihood. [ 14 ] In respect of the tertiary ground, the Judge found as follows: • The Crown’s case is extremely strong, or even overwhelming; • The offences with which the accused is charged are objectively grave, measured by the potential prison terms prescribed. [ 15 ] Consequently, the Judge determined that the detention of Ms. Jeon was necessary to maintain public confidence in the administration of justice. [ 16 ] Therefore, the Provincial Court Judge denied Ms. Jeon bail.

THE NATURE OF s. 520 REVIEW [17] The Criminal Code provides the accused with a process to review the decision of the provincial court judge: 520(1) Review of order If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), or (12) or makes or vacatesany 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 theorder. [18] The Supreme Court of Canada has outlined the role of this Court on a s. 520 review in R. v. St-Cloud, 2015 SCC 27 ,[2015] 2 S.C.R. 328.

The Court in that case resolved the question whether the s. 520 review should proceed in the nature of a trial denovo or an appellate review or a hybrid process. The Court chose the hybrid approach, and described it as follows: 121 It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise thispower if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevantfactor or insufficient weight to another.

The reviewing judge therefore does not have the power to interfere with the initial decisionsimply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to theones expressly specified in s. 515(10)(

c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permittedby ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in thecircumstances of the case.. [19] The hybrid approach is the one that has long been utilized by the Courts in this jurisdiction: R. v. F. (D.P.) (1999), (NL CA), 183 Nfld. & P.E.I.R. 166, 556 A.P.R. 166 (Nfld. C.A.); R. v. Moss, 2003 NLSCTD 110; and R. v. Rich, 2016 NLTD(G)87.

In Moss, LeBlanc, J. described the process as follows: 11 The "hybrid" approach referred to by Cameron J.A. falls somewhere between treating a s. 520 review as an appeal and a trial denovo. I too am satisfied that the approach to be taken for such a review falls at neither end of the spectrum. The cases dealing with theapproach to s. 520 appear to suggest that the ambit of the review is wider than the application of the standard of appellate review but notto the extent of holding a trial de novo.

What is required is for me to take a fresh look at the evidence presented before the original judgegiving some deference to any factual findings and inferences made. Any additional evidence offered is also to be taken into account inreviewing that decision. I am permitted to exercise my own discretion in deciding whether the accused has discharged his onus on abalance of probabilities to show cause why the previous order should be vacated.

Obviously if I find that circumstances have changedsince the first hearing or that the original judge misconceived the facts or made an error in law, this is relevant in the exercise of mydiscretion. As well, any exercise of discretion must be judicially considered and be fair to both sides. [20] Khaladkar, J. recently, in R. v.

Dicker, 2020 NLSC 53, summarized the hybrid process as allowing this Court to interfere withthe initial bail decision in the following circumstances: [This Court] may interfere with the decision of the Provincial Court Judge only if one or more of the following conditions are present: • Where there is admissible new evidence that shows a material and relevant change in circumstances; • Where the decision of the Provincial Court Judge contains an error of law; and/or • Where the decision is clearly inappropriate. [21] As to the last condition, the Supreme Court of Canada in St-Cloud said that an initial bail decision would be clearlyinappropriate where the judge gave too much weight to one factor, or insufficient weight to another. [22] The requirement that Ms.

Jeon has the onus to show cause why she should be released arises not only because the Codeprovides that a reverse onus is imposed due to certain specified offences, including some with which she is charged, but also because s.515(6)(

b) of the Code specifically provides that an accused person not ordinarily resident in Canada shall be detained until dealt withaccording to law unless the accused shows cause why detention is not justified. THE POSITIONS OF THE PARTIES [23] Ms. Jeon asks this Court to review and vacate the order of the Provincial Court, and order her release on conditions. The onusof persuading the Court to allow her release remains with Ms. Jeon. [24] Ms. Jeon takes issue with the findings of the Provincial Court Judge on both the secondary and tertiary grounds.

She arguedthat the Provincial Court Judge erred in law and in the application of the principles of bail. The proposed surety for Ms. Jeon testified atthis hearing, but I have reviewed the transcript of the evidence before the Provincial Court Judge and there was nothing new in theevidence of the surety in his testimony before me.

[25] As to the secondary ground, the accused says that the Provincial Court Judge erred in law in determining that there was asubstantial likelihood that she would reoffend, and that this error resulted from the Judge putting too much weight on the offences withwhich she was charged, and failed to give due consideration to the minor role that she allegedly played or to her lack of a criminalrecord. Ms.

Jeon also takes issue with the findings of the Judge regarding the suitability of the proposed surety. [26] As to the tertiary ground, the accused again takes issue with the weight that the Provincial Court Judge put on the gravity of thecharges, and says that the Judge failed to consider that she is alleged to be only a minor player in the enterprise. Ms. Jeon also disputesthe finding that the Crown case was very strong. [27] The Crown argues that its case is indeed strong, that the gravity of the offence is demonstrated by the extent of the moneyinvolved, that Ms.

Jeon’s failure to comply with the conditions of her entry into Canada demonstrates that she is unlikely to comply withany conditions imposed on her release, and that there is real concern that if she is released, then she will resume her alleged involvementwith the drug trade, or even leave the country and avoid trial. ANALYSIS The Primary Ground - Ensuring Attendance at Trial [28] The Provincial Court Judge found that he had real concerns about the primary ground. He referred to the Alberta decision of R.v.

GTB, 2020 ABQB 228, for the following description of factors relevant to his determination: 56 The first ground permits detention to ensure an accused's attendance in court. The common law recognizes certain factors to assesswhether an accused is a flight risk, including:

a) the nature of the offence and the potential penalty, on the reasoning that a serious chargewith a grave penalty will provide greater motivation for the accused to flee;

b) the strength of the evidence against the accused, on therationale that the accused is less likely to appear for trial if a high probability of conviction exists;

c) the accused's ties to the community,on the basis that the accused will be less inclined to flee if he or she has family, friends, property or a job connecting the accused to thecommunity;

d) the accused's record for compliance with court orders on previous occasions;

e) the accused's behaviour prior toapprehension by the police to the extent it reveals a willingness to evade capture following the commission of an offence and thereforeinvites an inference that the accused will abscond before trial. See as examples: United States of America v Singh, 2014 ONCA 559 atparas 10-14; R v Alcantara, 2009 ABQB 519 at para 49; and R v Smith, 2004 ABPC 22 at para 22 [Smith]. [29] These factors express the appropriate considerations.

I would only add that each of the factors must be assessed against thebackground of the cardinal, constitutionally protected rule that detention before trial is the exception (even in reverse onus cases). Taking that principle into account means that a conclusion merely that there is some risk that an accused person will not attend trial isnot sufficient. Instead, the risk must be significant. [30] I would agree with the assessment of the Judge regarding the risk that the accused will not attend to answer for the chargesagainst her.

The charges against her are grave and the outcome of a trial could very well be a lengthy term of imprisonment. The caseagainst her appears fairly strong, although not overwhelming, because it will depend largely on circumstantial and expert evidence. Shehas no ties whatsoever to this jurisdiction and the evidence that she adduced did not show any strong ties to community in B.C. Shecame to Canada to study but did not ever attend school and chose to live four hours away from the school. She does not have family inCanada.

She failed to comply with the conditions under which she was permitted entry to Canada, and she failed to advise theappropriate authorities that she had never assumed her status as student. The Judge determined that the accused had not been honest inher testimony to the Court. The Judge found that the proposed surety would not provide sufficient guarantee that the accused wouldattend trial.

Nevertheless, the Judge found that imposing a condition that the accused surrender her passport would sufficiently lower therisk of her failing to attend for trial that her release was justified. [31] The Crown at this hearing did not dispute the conclusion of the Judge on the primary ground. There was no error of law orinsufficient weighting of principles underlying the Judge’s decision. I would not disturb it.

The Secondary Ground - Protection of the Public [32] The secondary ground recognizes that a valid system of bail must protect the public from the continuation of criminal behaviorthat threatens public safety. The balance between the policy goal of public protection, on one hand, and the constitutional right toreasonable bail, on the other, is struck by the requirement that the court must find that there is a substantial likelihood that the accusedwill commit criminal offenses that threaten public safety if released. [33] As the Supreme Court of Canada recognized in R. v.

Morales, (SCC), [1992], 3 S.C.R. 711, the secondaryground is not intended to be utilized to require the pretrial detention of a person unless there is demonstrated likelihood of public dangerresulting from the release of the accused. [34] In R v. Noray, 2016 NLTD(G) 148, McGrath, J relied on cases from the Supreme Court of Canada for the finding that anaccused allegedly involved in significant organized drug trafficking is substantially likely to commit offenses after release that threatenthe safety of the public: 23 The Supreme Court of Canada in R. v.

Dickson (2008), 2008 NLTD 1 , 307 Nfld. & P.E.I.R. 61, 86 W.C.B. (2d) 779(N.L. T.D.), at paragraph 15, recognized that public safety is jeopardized by trafficking in illegal drugs. The drugs themselves aredetrimental to the health and well-being of the public. In particular, hard drugs like cocaine are a plague upon the community. 24 In R. c. Pearson, (SCC), [1992] 3 S.C.R. 665 (S.C.C.), Lamer, C.J.C., at paragraph 61 noted that drug traffickingis often a business and a way of life giving rise to huge incentives for suspects to continue their criminal behavior even after arrest.

[ 35 ] On the basis of these authorities and the evidence that the accused was found in possession of a substantial sum of cash derived allegedly from trade in illicit drugs, I agree with the conclusion of the Provincial Court Judge that there is a substantial likelihood that if she is released then Ms. Jeon presents a risk to public safety from continued involvement in the drug trade. I reject the argument of Ms. Jeon that this conclusion was based in error of law. [ 36 ] The constitutional protection of the right to reasonable bail requires however that Ms.

Jeon should nevertheless be released if she can show that the imposition of appropriate conditions will reduce the risk so that it can no longer be said that there is a substantial likelihood that she presents a threat to public safety. She takes the position that the surety she offered provides sufficient assurance to allow for her release. [ 37 ] As the Supreme Court of Canada noted in R. v. Antic , 2017 SCC 27 , unconditional release on the accused person’s own undertaking is the default decision on bail.

However, where such an unconditional release is not justified, then the least onerous grounds that would allow release ought to be adopted. The Court noted that a recognizance with sureties is the most onerous form of release, and therefore, should not be adopted readily. In this case, however, release on surety is presented by Ms.

Jeon as a conditional form of release that allays the concern that she would present a substantial likelihood of committing an offence that threatens public safety. [ 38 ] Care must be taken not to utilize sureties as citizen jailers, and no surety can ever provide a perfect guarantee that a person on bail on the strength of their surety will comply with conditions intended to reduce the risk of reoffending. Nonetheless, there are certain recognized characteristics that can result in the rejection of a proposed surety.

As stated by the authors of Steven Penney, Vincenzo Rondinelli & James Stribopoulos, eds., Criminal Procedure in Canada, 2nd ed. (Toronto: LexisNexis, 2018) : §6.40 Given that a surety is expected to supervise the accused in the community and pledges to pay a specified sum if that obligation is not faithfully discharged, the courts have recognized that not everyone is up to this task. In deciding on the appropriateness of a proposed surety, the court must consider a number of variables. §6.41 One of the most important is the relationship between the proposed surety and the accused.

As Justice Trotter explains, considerations such as “how long the surety has known the accused, whether they are related, how frequently they see each other and how close they live to one another (indeed, whether they live together)” are all relevant to assessing if the surety “can be expected to supervise an accused and take action if the accused fails to live up to the conditions of his/her release.” For example, if a proposed surety “barely knows the accused” or “has little contact with the accused” then they are unlikely “to be effective at supervising the accused.” The same is true of a close friend or family member who lives far from the accused. [ 39 ] The Provincial Court Judge rejected the suitability of the surety proposed by Ms.

Jeon. The same surety was proposed and testified on this hearing. I agree with the conclusion of the Provincial Court Judge. He noted in his judgment that his evidence at the initial hearing refuted his suggestion that he was close friends with the accused. The surety did not know that Ms. Jeon failed to register for or attend school. He did not know the school that she allegedly came to Canada to attend.

He did not explain how he came to be close friends with the accused given that she has been in Canada only since May, 2019. [ 40 ] The Provincial Court Judge determined that the evidence did not show that the proposed surety would provide the level of supervision or moral suasion necessary to reduce the likelihood that the accused would reoffend from substantial to an acceptable risk. [ 41 ] The proposed surety also testified at this hearing. His evidence before me was no different than at the initial hearing.

I come to the same conclusion as did the Provincial Court Judge. [ 42 ] Therefore, on the secondary ground I find that there is a substantial likelihood that the accused will reoffend in a manner that will threaten public safety. She has proposed that she would accept a surety as a condition of release. A surety might very well be sufficient protection for the public, but the proposed surety has not satisfied me that he is a suitable surety. Consequently, the accused has not met her onus on the secondary ground and her continued detention is therefore justified.

The Tertiary Ground- Public Confidence in the Administration of Justice [ 43 ] Although I have decided that the continued detention of the accused is justified on the secondary ground, I will deal with the tertiary ground under s. 515(10)(c), which provides that the detention of an accused may be justified: 515(10) Justification for detention in custody For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 44 ] As the Supreme Court of Canada noted in St-Cloud , the tertiary ground is an independent basis for refusing release that can justify pre-trial detention even when it is not justified by reference to the other grounds.

The tertiary ground is set out in a clearly- worded provision, and it is not reserved for rare or exceptional cases, even though pre-trial release is the rule and detention the exception. [ 45 ] The circumstances in which this ground will apply are not limited to the four listed in s. 515(10)(

c) of the Code . The Provincial Court Judge considered the tertiary ground by reference to the four factors, although he did recognize that the decision on the tertiary ground should be based on consideration of all of the circumstances with the four listed factors as the main guide. [ 46 ] The Provincial Court Judge found that the Crown’s case is extremely strong and he would describe it as overwhelming. I would not agree with that conclusion. The Crown case is based on solid surveillance evidence, but the accused was not apprehended in the possession of drugs.

The case against her therefore depends on circumstantial and expert evidence. [ 47 ] The Provincial Court Judge found that the offences that Ms. Jong allegedly committed were objectively grave based on the maximum sentence of 14 years imprisonment for some of the offences. He did note that there was no minimum sentence attached to any of the offences. [ 48 ] The Provincial Court Judge decided that Ms. Jeon’s detention was required to maintain public confidence in the administration of justice considering all of the circumstances.

He noted that the she is facing serious criminal charges that involved planning, deliberation and sophistication. [ 49 ] I do not agree with the conclusion of the Provincial Court Judge. I find that his decision ascribed inordinate weight to the maximum sentence available for the offence charged and the organization involved in the criminal operation, but gave insufficient weight to the role allegedly played by Ms. Jeon in the criminal enterprise. The Crown relied on the evidence of police experts in drug trafficking to bolster its position on the strength of its case.

However, that evidence showed that as part of its case the Crown would attempt to prove that Ms. Jeon was acting as a drug courier. It is not a part of the assertions offered by the Crown that Ms. Jeon was the leader or one of the primary planners of the criminal enterprise. Instead, the Crown case is that Ms. Jeon acted in a minor role as a courier. [ 50 ] This alters the conclusion regarding the sentence that Ms.

Jeon is likely facing and detracts from the conclusion that she was involved in sophisticated planning and deliberation. [ 51 ] In all of the circumstances, I find that perception of the integrity of the administration of justice held by a reasonable person, properly informed of the philosophy underlying the concepts of bail, including the Charter protection of the right to bail, and the circumstances of the charges the accused is facing, would be undermined by the detention of Ms. Jeon if not for the finding on the secondary ground. Her detention would not be justified on the tertiary ground.

Conclusion and Disposition [ 52 ] However, as I have found against Ms. Jeon’s release on the secondary ground, then, for the reasons stated, her application to review and vacate the order for her pre-trial detention is dismissed and the order for her detention will remain in place. _____________________________ Daniel M. Boone Justice