Her Majesty the Queen - v. -, 2012 SKPC 89

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 089 Date: June 5, 2012 Information: 24356789 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Victor Quan Appearing: C. Neely For the Crown P. Chetty For the Accused JUDGMENT re: SHOW CAUSE HEARING M. M.

BANIAK , J [ 1 ] The accused, Victor Quan, is charged, along with one other individual, with the following offences: Count # 1: Being two of the persons in a criminal organization constituted of at least three of the following persons: Victor Quan, Ryan Matthew Paul Kemash, Rosealee Ann Naumann, Jesse John Hoover, Kole Doug Marchant, Tim Kyle Iron, Amanda Lee McKay or others, did knowingly instruct, directly or indirectly, one or more of those persons to commit an indictable offence of trafficking in a controlled substance, to wit: cocaine, for the benefit of, or at the direction of, or in association with the criminal organization, contrary to

section 467.13(1) of the Criminal Code .

Count # 2: Commit the indictable offence of trafficking in a controlled substance, to wit: cocaine, for the benefit of, or at the discretion of, or in association with a criminal organization comprised of at least three of the following persons: Victor Quan, Ryan Matthew Paul Kemash, Rosealee Ann Naumann, Jesse John Hoover, Kole Doug Marchant, Tim Kyle Iron, Amanda Lee McKay or others, contrary to

section 467.12(1) of the Criminal Code . Count # 3: Did unlawfully conspire together with Rosealee Ann Naumann, Jesse John Hoover, Kole Doug Marchant, Tim Kyle Iron, Amanda Lee McKay, and person or persons unknown or unnamed, the one with the other or others of them, to commit the indictable offence of trafficking in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act , and section 465(1) (

c) of the Criminal Code . Count # 4: Did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . Count # 5: Did unlawfully have in their possession a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . which were allegedly committed between May 25, 2011 and February 13, 2012. [ 2 ] He is also charged with eight counts of breach of recognizance - s. 145(3) of the Code - which allegedly occurred between August 25, 2011 and November 23, 2011. [ 3 ] Mr.

Quan has been in custody since February 13, 2012. [ 4 ] A show cause hearing commenced on March 6, 2012 and concluded on May 14, 2012. [ 5 ] The Crown is opposed to his release on all three grounds. This was a reverse onus show cause hearing and, accordingly, the accused had to show, on a balance of probabilities, that his continued detention is not justified under s. 515(10) of the Criminal Code . [ 6 ] A Bail Verification and Supervision Report was prepared.

He was not recommended for interim release. [ 7 ] Subsection 515(10) reads as follows: 515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

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

b) where the detention is necessary for the protection or safety of the public...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. [ 8 ] The accused’s criminal record, which was examined and acknowledged, is reproduced in Appendix “A” in its entirety. [ 9 ] It will be noted that his first conviction for trafficking took place on June 16, 2004, (as a youth) and he was given two years probation. [ 10 ] In 2006 (September 7) he was again convicted of trafficking, as well as four firearms offences, and was sentenced to four years in a federal penitentiary.

He was released on April 29, 2010. [ 11 ] The facts, as presented by the Crown, may be summarised as follows. [ 12 ] Starting in April of 2011, the Prince Albert Special Forces investigating drugs and organized crime commenced an operation named “Project Freak” which was tasked with investigating a couple of individuals - namely a Mr. Tse and Mr. Chiu - who were bringing cocaine into Saskatchewan for redistribution among other drug dealers. [ 13 ] During the course of the investigation, the accused was observed meeting Mr. Chiu at different locations in Saskatoon. He would usually get inside Mr.

Chiu’s vehicle and exit shortly thereafter with a package. He was also observed with a package at the bus depot. [ 14 ] A condominium unit located on Harold Terrace in Saskatoon was frequented by Mr. Tse and Mr. Chiu. When police searched the condominium they found three kilograms of cocaine. [ 15 ] Two undercover officers utilized by “Project Freak” purchased small amounts of cocaine from one Mr.

Hoover, who advised them that “Vic”, referencing the accused, “He’s the boss”, “I and Marchant work for him.” [ 16 ] A tracking device was placed on the accused’s Mercedes and from September 7 - 21, 2011, that vehicle was noted as stopping at Carlton High School seven times. [ 17 ] Police intercepted hundreds of calls being made by the accused to Ms. Naumann, Mr. Marchant and Mr. Hoover, all of whom sold cocaine to the undercover police officers. [ 18 ] In August 2011, Ashley Kemash, the accused’s girlfriend, called police and reported that she was being assaulted by the

accused. He was arrested and spent three days on remand - from August 9 - 12, 2011. [ 19 ] While on remand, the accused kept in touch with the co-accused, Ryan Kemash. These telephone conversations were intercepted, and, it is submitted by the Crown, included coded drug talk. At one point, apparently, Kemash apologizes to the accused for missing the last call. [ 20 ] During the months after his release, the accused operated, it is alleged, in the drug business unhindered by his Court imposed conditions.

The Crown made detailed reference to the accused making trips to Saskatoon and Duck Lake for the purpose, it is alleged, of picking up cocaine for redistribution in Prince Albert. [ 21 ] The accused gave evidence at the show cause hearing. When questioned about his past criminal record he tried to minimize his involvement and was reluctant to admit outright his guilt. He testified that he was eager to take up employment and that he wanted to support his spouse and children.

He further filed letters of support from his former employer and testified that he had a job waiting if released. [ 22 ] In cross-examination, the accused acknowledged that he severely assaulted his girlfriend and, that while on remand from that charge he continued an ongoing correspondence with his co-accused, Mr. Kemash and his father, Tony Quan. [ 23 ] Defence also called to testify the accused’s father, Tony Quan. He testified that if his son were to be released he would be living with him and subject to strong supervision. He believes his son would listen to him because he was raised to respect his elders.

He testified that although the Mercedes car was registered in his son’s name for awhile, it actually belonged to him all along. [ 24 ] Finally, he was prepared to utilize his savings, take out a bank loan, or place a second mortgage on his house in order to post cash bail for his son. [ 25 ] During cross-examination, Mr. Quan maintained his position that he would be able to control his son, notwithstanding that his previous assurances in Court to the same effect were not realized. [ 26 ] At the conclusion of defence evidence, it was argued that the accused should not be judged as being guilty by association.

It was pointed out that the co-accused, Ryan Kemash, was the violent one. When addressing the accused’s breach charges, it was argued that he breached because he wanted to be with his children. In keeping with this theme, defence argued that the accused only wants to be a good father, a good provider, who is willing and able to work and, most importantly, had a job waiting if released. [ 27 ] He has completed an anger management course, and he will be ably supervised by his father, with whom he would live.

This, combined with strict conditions, like electronic monitoring, curfew, reporting to police and cash bail, would assure compliance and good behaviour. Finally, defence submits, if the co-accused was granted bail, so should the accused. ANALYSIS [ 28 ] With respect to the primary ground, the onus is on the accused to show that his detention is not necessary to ensure his attendance in Court.

The Crown argued that the accused has only lived in Prince Albert for a relatively short period of time and that he has previously failed to appear in Court when required to do so. [ 29 ] Although his connection to Prince Albert is not a long one, it cannot be dismissed outright. His father lives here, and he is his strongest base of support. He has friends here and they expressed support for him. He has employment opportunities in Prince Albert. On the other hand, there is no evidence to suggest that he has any ties or connections to persons or organizations outside of Canada. His spouse and children are here.

His financial means are unknown, but it appears that he relies heavily on his father - particularly when it comes to posting bail money.

[ 30 ] It is true that he has two failures to appear in Court - one in 2004 and one in 2005 - but having regard to his criminal record and the number of times that he would have been required to be in Court as a result of his numerous charges, it appears that he has made a reasonably diligent effort to attend Court and his promise that he would do so again has to be given some currency. [ 31 ] This, combined with his personal circumstances, satisfy me that the accused is not a high flight risk and that he would be likely to attend Court when required to do so.

As such, his detention on the primary ground is not warranted. [ 32 ] With respect to the secondary ground, the accused has a much heavier burden. He has a record for similar offences for which he had served considerable time. Shortly after being released from prison he is alleged to be involved in a similar criminal enterprise. [ 33 ] The accused’s actions were not spontaneous but planned and deliberate. Further, the accused’s actions allegedly occurred repeatedly over a period of time - it was not an isolated incident.

More disturbing is the allegation that the accused continued to run his operation while in custody on remand. To assume that he would cease and desist while on conditions in the community would be a leap of faith. His proposed employment, as a general labourer in a mechanical shop, would leave him unsupervised for most of the day. Mr. Tony Quan, according to his testimony, goes to sleep at 7:30 p.m. This means that the accused would have no supervision after work either. [ 34 ] His past behaviour, and that is what the Court can rely on, suggests that he is very likely to re-offend if released.

I do not believe that his father, with whom the accused would be living, would be able to exact any meaningful influence or control over him. There is even some suggestion that his father is afraid of him. [ 35 ] Defence’s argument that since the co-accused has been granted bail, the accused should be as well, is not persuasive. Each case is analysed and decided on its own merits. The parity principle - referenced in s. 718.2 (

b) of the Criminal Code with respect to sentencing - does not apply to bail hearings. [ 36 ] Finally, I cannot ignore the fact that the accused, while out on a $2,500.00 cash recognizance, accumulated eight breaches. This clearly shows that Court imposed conditions do not act as a deterrent to this accused. [ 37 ] The accused has not discharged his burden, on a balance of probabilities, that he is not a substantial risk to re-offend if released from custody.

Therefore, his detention is justified on the secondary ground. [ 38 ] With respect to the tertiary ground, it could be argued that an average, reasonable person, informed that an accused who is released from a federal prison after having served four years for trafficking of drugs, would, right after getting out again engage in the same criminal activity, would lose faith in the judicial system if that accused were released from custody pending trial. [ 39 ] Moreover, in this case, the charges are serious: the Crown’s case appears to be solid, and the accused, if convicted, is likely to be sentenced to a lengthy period of incarceration.

His release, it could be argued, would undermine the public’s confidence in the administration of justice. [ 40 ] However, a close reading of the reported decisions suggests that this is not a proper case wherein the accused’s detention pending trial is justified on the tertiary ground. Various Courts have held that this ground is generally reserved for the most heinous of crimes. [1] [ 41 ] The Supreme Court in R. v. Hall , posits that s. 515(10) (

c) should only be resorted to when the primary and secondary grounds are not met, and then only if the crime is a heinous one. Chief Justice McLachlin stated: [2] 26 Therefore, Parliament provided for denial of bail where paras. (

a) and (

b) of s. 515(10) are not met but the judge, viewing the

26 Therefore, Parliament provided for denial of bail where paras. (

a) and (

b) of s. 515(10) are not met but the judge, viewing the situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is “just cause” for refusing bail. To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public’s confidence in the administration of justice. [ 42 ] Our Court of Appeal, in R. v.

Blind , also seems to set a very high standard and states that detention should not “...be justified on the ground alone that it is necessary to maintain the public’s confidence in the administration of justice.” [3] [ 43 ] Having regard to the above, and the fact that the accused has failed to present a viable case as to why his detention is not justified on the secondary ground, I conclude that the conditions necessary to satisfy detention on the tertiary ground have not been met. [ 44 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 5 th day of June, A.D. 2012. ___________________________________ M.

M. Baniak, J APPENDIX “A ” - Criminal Record of Victor Quan Date Charge Sentence 2001-10-23 Winnipeg Man (Youth Court)

(1) Theft over $5000, sec 334(

a) CC

(2) Flight, sec 249.1(1) CC (Winnipeg PS WP205766) (1-2) Probation 1 yr on each chg conc. 2004-06-09 Winnipeg Man (Youth Justice Court)

(1) Fail to comply with disposition, sec 26 YO Act

(2) Fail to appear, sec 145(5) CC (3 chgs) (Winnipeg PA 205766) (1-2) Probation 1 yr on each chg conc. 2004-06-16 Winnipeg Man (Youth Justice Court) Traffic in scheduled substance sec 5(1) CDS Act Probation 2 yrs. 2005-02-07 Winnipeg Man Personation with intent sec 403 CC (Winnipeg PS 205766) 1 day & (Time served 30 days)

2005-04-22 Winnipeg Man Fail to comply with Recognizance sec 145(3) CC (2 chgs) (Winnipeg PS 205766) 21 days on each chg conc. 2005-8-23 Winnipeg Man

(1) Fail to attend Court sec 145(2) CC

(2) Fail to comply with Recognizance, sec 145(3) CC

(3) Poss of a scheduled substance sec 4(1) CDS Act

(4) Fail to comply with disposition, set 137 YCJ Act (Winnipeg PA WP705766) (1-4) Time served (38 days) on each chg conc 2005-10-27 Winnipeg Man Fail to comply with Recognizance, sec 145(3) CC (Winnipeg PS 205766) Time served (16 days) Date Charge Sentence 2006-03-22 Winnipeg Man Assault with a weapon sec 267(

a) CC (Winnipeg PS WP 205766) Time served (9 mos) & Mandatory prohibition order sec 109 CC

2006-09-07 Winnipeg Man

(1) Poss of a

schedule I substance forthe purpose of trafficking sec 5(1) CDS Act

(2) Careless storage of firearm,weapon, prohibited device orammunition sec 86(1) CC

(3) Poss of a firearm knowing itspossession is unauthorized sec 92(1) CC (2 chgs)

(4) Poss of a firearm, prohibited orrestricted weapon obtained by crime,sec 96 CC

(5) Tampering with serial number of afirearm, sec 108(1)(

a) CC

(6) Fail to comply with recognizance,sec 145(3) CC (2 chgs) (Winnipeg PS WP 205766)

(7) Poss of firearm or ammunitioncontrary to prohibition order sec117.01(1) CC (Inst. Stony Mountain) (1) 4 yrs & (9 mos pre-sentencecustody) (2-7) 2 yrs on each chg conc & Conc & Mandatory prohibition order sec 109 CC [1] R. v. Heyden (2009), 2009 ONCA 494 , 67 C.R. (6th) 174 (Ont. C.A.). [2] R. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309. [3] R. v. Blind (1999), (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.), para. 19.