R. v. Law and Lai Date:, 2013 BCPC 393

Citation: R. v. Law and Lai Date: 20130827 2013 BCPC 0393 File No: 231137-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YING HO RAYMOND LAW ALAN TECK MENG LAI EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE ST. PIERRE BAN ON PUBLICATION S17(1) CCC; 486.4(2) CCC Counsel for the Crown: B. Wolfe Counsel for Accused Law : R. Fowler, K. Blok

Counsel for Accused Lai : P. McGowan, K. McCleery Place of Hearing: Vancouver , B.C. Date of Hearing: August 27, 2013 Date of Judgment: August 27, 2013 [ 1 ] THE COURT: I have got Mr. Lai and Mr. Law seeking their release. The Crown is seeking their detention on this Information 231137. It is a 3-C Information. It has 20 counts on it. [ 2 ] In brief compass, those counts refer to five different complainants and the allegations that Mr. Lai and Mr.

Law are responsible for administering stupefying substance to those five complainants, and there are allegations, as well, that while the complainants were suffering the effects of what is alleged to be GHB, they did sexually assault those individuals and take photographs of exposed genital organs and regions of the breasts, et cetera. So that is contrary to s. 162(1) (

b) of the Criminal Code . [ 3 ] Some of the counts are under 246(

b) of the Criminal Code . That is the administering a stupefying substance. The sexual assault

section is 271(1). There are some counts that relate to sexual assault causing bodily harm, 272(1)(c). [ 4 ] So the allegations against these two gentlemen are very serious. The involvement of Mr. Law is alleged to be more than that of Mr. Lai, but in any event, the allegations themselves are very serious allegations. They involved situations where the police eventually, through their investigation, have some concern over the safety of women that are in these two men's company.

They later executed a search warrant, obtaining information and photographs, and later showing the complainants the photographs that had been taken while they were seemingly passed out. These photographs are disturbing. [ 5 ] They show sexual activity and photographing of women who, essentially, do not appear to be conscious, and those are just some of the photographs that I saw. The complainant C.M., for instance, relates to Count 17 and 18 -- they were -- after the incident occurred, she asked Mr. Law, after she had been invited to a dinner with a fellow named A.E. [phonetic], if something happened.

She does not even remember the night. [ 6 ] When the police went to see her in July of 2013 (the allegations arose from New Year's Eve, 2012), she did not even know why she was being interviewed. She said she had never engaged in any consensual sex with Mr. Law. When she was shown the photos and identified herself, she had no knowledge of that activity and had indicated she did not consent to any sexual relations. She experienced symptoms consistent with GHB ingestion. [ 7 ] There were the two individuals' toxicology reports that came back from two of the complainants, C.M. and K.P.

That toxicology report showed positively that there were signs of GHB ingestion with those two individuals. [ 8 ] With the other complainants, it is the circumstances that are alleged surrounding the incidences that lead, the Crown says, to the only inference and that is that they were provided an intoxicating substance like GHB, as well.

There are cases suggesting that the Crown does not have to prove by toxicology that individuals were administered GHB which has a very short half-life and is passed through the system very quickly. [ 9 ] There are cases that have led to convictions where the circumstances themselves such as the testimony from individuals saying that they only had a certain amount to drink and then, all of a sudden, they were rendered completely unconscious; that the circumstances themselves led the court to infer the necessary elements of the offence, and I am only briefly referring to some of the specifics with respect to the cases.

I will not detail all of the facts that were alleged or the allegations that were made against each individual, but the gist of the offences is that these two men were basically meeting young women, getting them to come either on a boat or Mr. Law's apartment and then administering these drinks laden with GHB. [ 10 ] Now, Mr. McGowan points out that his client had much less involvement on fewer occasions and that is fair from the facts that were passed on to the court. [ 11 ] So the counts are serious.

There are seizures that show photographs, again, of these women in various states of undress and they appear to be unconscious. There are photos that show sexual activity, not just photos of the naked women, but sexual activity involving -- there are close-up photos, some involving a picture of a penis as it is contacting, for instance, a mouth of one complainant and the genital regions of others. That resulted in the police obtaining a search warrant to gain photographs of Mr.

Law's penis because apparently there are some identifying markings on his body that supported a conclusion that the penis in the photos is that of Mr. Law. [ 12 ] On the face of it, there is a case for the Crown, a case that requires at some point some answer on the face of it.

My jurisdiction here is not to comment unnecessarily about the merits of the case, but only to say that the strength of the Crown's case is obviously a relevant factor when determining whether judicial interim release is appropriate, but as the Supreme Court of Canada in Morales has stated and has repeated over and over again, bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail.

It is only denied to people who pose a substantial likelihood of committing further offences or interfering with the administration of justice and only where that substantial likelihood endangers the protection and safety of the public. [ 13 ] So the presumption is release. The presumption is that people are innocent until convicted. The presumption is that their right to reasonable bail is enshrined in the Charter and that, in considering any bail situation, that presumption must -- I must never forget that, that the underlying presumption is that an accused is entitled to his liberty pending trial.

That is the law. It is enshrined in s. 11(

e) of the Charter of Rights . It is only those circumstances where the fundamental rights and freedom of the accused must be overridden in order to preserve some demonstrably pressing societal interest.

[ 14 ] In this case, the Crown says that their detention is necessary under the primary, secondary, and tertiary grounds. The primary ground because there is evidence that there is a proclivity to travel, especially for Mr. Law, but certainly, as well, for Mr. Lai, that they have been in and out of the country on many occasions since 2008; that there are ties to other jurisdictions, but I am told that Mr. Law has been in country since 1975 and is a citizen of Canada. [ 15 ] Mr. Lai has been here since -- when was that -- you told me? It was -- [ 16 ] MR.

MCGOWAN: 1988, Your Honour. [ 17 ] THE COURT: -- 1988, and he came to Canada around nine years of age, as I remember, born in Brunei, 1979, and he has no other passport, but a Canadian passport. [ 18 ] What I am considering, whether the Crown has shown cause that the presumption should be overridden, and the primary ground concern is due to these ties and a proclivity for travel and the seriousness of the charges.

There is certainly a risk of flight, but there can be, in my mind, on that ground sufficient conditions put in place that will limit any risk of that happening. [ 19 ] Really, the Crown's strongest argument, in my mind, is under the secondary ground and the secondary ground is according to -- again, The Queen v. Morales deals with that issue, is the protection or safety of the public only protected by the detention of these two accused persons?

Is it necessary to detain them to protect the safety of the public? [ 20 ] Obviously, the danger of a criminal offence being committed in the future does not provide itself a just cause for detention. In general, our society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime.

That is what Morales says, but in this case, these individuals, both men, have no criminal records. [ 21 ] The argument is, essentially, that the offences themselves provide a satisfactory basis for coming to the conclusion that there is a substantial likelihood of further offences being committed in the same vein as these offences that they are alleged to have committed on this indictment. It involved, obviously, a degree of planning if one were to take the case at its highest level.

It involves the administration of the kind of substance that leads to an inability on the complainant's part to remember, to recall what happened, an inability to provide a general and informed consent for any sexual activity or other activity that has been alleged here. [ 22 ] It is a very, very dangerous narcotic in the hands of the wrong people and Mr. Wolfe, on behalf of the Crown, says that these two gentlemen are the perfect example of the wrong people, and that it would be dangerous to have them out on bail because of the nature of the offences.

In my mind, I think there are conditions that could be put in place that could adequately address any risk of further offences being committed. [ 23 ] Now, we know that there is no criminal record here.

There was an allegation by the Crown that there were criminal connections and associations, generally unspecified, generally had to do with individuals being found in the company of other shady characters, but nothing so specific as to warrant a general finding that they are somehow ensconced in a gang lifestyle or necessarily involved in a criminal lifestyle. [ 24 ] In my mind, there are conditions that could be put in place that would allow these gentlemen to be released pending the matter being properly heard in court and that would adequately address any risk and reduce any likelihood of further offences being committed to a mere risk once conditions are put into place.

I have also considered the tertiary ground, as well, because that is also argued by the Crown and the Crown has to satisfy the court that the accused's detention is necessary in order to maintain confidence in the administration of justice having regard to all the circumstances, and Hall from our Supreme Court of Canada delineates a very narrow set of circumstances under which that category can be used to deny bail. [ 25 ] The courts have consistently found that these would be relatively rare cases and the ultimate test is whether a reasonable person properly informed about the philosophy of the legislative provisions, like the Bail Reform Act and our Charter values, et cetera, would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice.

This hypothetical well-informed person is not a reactionary uninformed person, but is, a well-informed reasonable person. Can the confidence of the public be maintained if the accused is no danger to the public and is not a flight risk?

In my mind, if I can address the concerns under the primary and secondary ground, it seems clear to me that this is not one of those cases that was contemplated by the Supreme Court of Canada in Hall and the other cases that came after it as being one of those cases that requires a detention in order to maintain confidence. [ 26 ] There are significant conditions that could be put in place that would, in my mind, adequately address any risk, and I am going to get to those now.

So it seems to me, counsel, and again, I know that counsel has offered up certain conditions that they say would be possible, if necessary. They have to be necessary.

They cannot be simply conditions -- onerous conditions put in place just to satisfy some unwarranted concern that these are serious charges and they require some sort of serious response which would amount to more punitive measures than necessary to ensure good conduct pretrial. [ 27 ] So in my mind, both of these gentlemen can be released on a recognizance with one or more sureties in the amount of $20,000 cash or surety. [ 28 ] That there be conditions to keep the peace and be of good behaviour.

These are for both men, report to a bail supervisor at 275 East Cordova Street forthwith no later than four o'clock tomorrow and then, thereafter, as directed by a bail supervisor, correctional officer, or other peace officer. [ 29 ] They will also, if directed by the bail supervisor, report to either the Vancouver High Risk Offender Unit or other police department High Risk Offender Unit or other police department as directed by the bail supervisor. [ 30 ] You will provide your current residential address to the bail supervisor -- first -- maybe I will go back on that. [ 31 ] You are both required to reside with one of your sureties.

I will address that if it is going to be a problem later on, but I really

think that in light of the circumstances of these allegations and, again, they are only allegations right now, but the whole idea is to address the risk, is that they are to be required to live with one of the sureties. [ 32 ] You will provide that residential address to the bail supervisor and not change that address without the prior written permission of the bail supervisor. [ 33 ] You are not to be outside your residence between the hours of 10:00 p.m. and 7:00 a.m., seven days a week, and present yourself at the door of your residence upon request of the bail supervisor or any peace officer for the purposes of determining compliance with that condition. [ 34 ] You are not to be found in any establishment that holds a license excluding those under the age of 19 years old. [ 35 ] You are to remain within the Province of British Columbia. [ 36 ] You are to surrender any travel documents including any passport, Nexus card, or enhanced driver's license to Detective Lisa Byrne of the Vancouver Police Department by 4:00 p.m. on -- I will give you a couple of days to do that, and that is August 29th.

That is 4:00 p.m. on August 29th, and not to apply for any travel documents including any passport, Nexus card, or enhanced driver's license without the prior permission of the court. [ 37 ] You are to carry a copy of this release document at all times and produce it to a peace officer upon request of the peace officer. [ 38 ] You are not to possess any firearm or any of the devices described in s. 515(4.1) of the Criminal Code . [ 39 ] You are not to attend at the Heather Civic Marina located at 600 Stamps Landing in Vancouver, British Columbia. [ 40 ] This next one, Mr.

Wolfe, I think there is a supposed to be a negative in there somewhere. [ 41 ] MR. WOLFE: That is right. [ 42 ] THE COURT: Yes. [ 43 ] You will not be found on any privately owned boat or vessel. [ 44 ] You are not to possess or consume any alcohol, controlled substance as defined in the Controlled Drugs and Substances Act , or medication not prescribed in your own name. [ 45 ] You are not to serve, provide, or purchase any beverage for a female. [ 46 ] You are not to possess any device that is capable of capturing digital images or video or any traditional film camera or video recorder.

I am going to leave the cellphone.

They are just going to have a phone that is not capable of performing those functions. [ 47 ] You must not be in the company of a female who is not a family member unless you are in the company of another adult person previously approved by your bail supervisor, and I will hear submissions on whether that causes any issues. [ 48 ] You are not to have any contact direct or indirect with a whole list of folks that are provided here, and I assume has been seen by the defence, including the complainants in the Information, C.M., K.P., C.M., S.J., S.K., M.R., G.F., T.C., R.G., D.C., M.A., T.S., and C.O. [ 49 ] Any of those a problem?

Do we know? [ 50 ] MR. FOWLER: I think we have to have -- [ 51 ] THE COURT: You have to -- [ 52 ] MR. FOWLER: -- "except indirectly though counsel." [ 53 ] THE COURT: Except, okay. Yes, "Except indirectly through legal counsel." [ 54 ] You are not to have any contact direct or indirect, each of you, with your co-accused. So that, Mr. Registrar, then, in relation to each person, Law to have no contact with Lai and Lai to have no contact with Law, except through legal counsel. [ 55 ] THE COURT: Is there anything else, Mr. Wolfe? I will hear from you first and then I will hear from -- [ 56 ] MR.

WOLFE: Yes, thank you. [ 57 ] THE COURT: -- from the defence, that you can think of? I think I have covered everything except an area restriction which I think is covered by a restriction on going to any bars or nightclubs, and yes, you know, I cannot think of anything else that would serve the purpose that I intend it to serve. [ 58 ] MR. WOLFE: The issue of the text message will not be covered with respect to the PDA or electronic device that records photos and we know that -- [ 59 ] THE COURT: No. [ 60 ] MR. WOLFE: -- and we know that text messages are problematic.

[ 61 ] THE COURT: Yes, I thought about the text messaging which is just basically these days a way of communicating same as emails and Facebooking and all of the rest of it. It just seems to me to be something that is impossible to sort of -- [ 62 ] MR. WOLFE: Then would Your Honour then provide an opportunity for the police to verify that via text mail or Internet that neither Law nor Lai are contacting females, because if they are going to be provided with the means to send a text message, then the risk remains that they will. [ 63 ] THE COURT: Yes.

In my mind, what the risk is, is not the communicating with people which is something that everybody needs to do to have a relatively normal life, but the risk is not to be in the company of females and that is covered. Not to provide females any beverages or serve a beverage to a female, that is covered. [ 64 ] MR. WOLFE: I am just concerned about the scenario where he sends a text message to come over for a visit when the surety is not home or some such -- or meeting elsewhere and -- [ 65 ] THE COURT: Well, again, he is not supposed to be in the company of any female that is not a family member. [ 66 ] MR.

WOLFE: It just makes it more difficult for him to do that and deliberately so, right, I mean -- [ 67 ] THE COURT: Well, I can tell you from having teenagers that there are so many different ways of communicating these days that saying you cannot text somebody is like saying, "you cannot dial somebody up on a cellphone." I know teenagers do not even use the phone anymore. They use a thousand different other ways to communicate with people. It just seems a very difficult thing to control. Anyways, I will hear from defence counsel. [ 68 ] MR.

FOWLER: The reporting conditions, report to a bail supervisor by 4:00 p.m. -- [ 69 ] THE COURT: Yes. [ 70 ] MR. FOWLER: -- and I think you gave the date of the 28th in your conditions. [ 71 ] THE COURT: Tomorrow. [ 72 ] MR. FOWLER: Yes, what I was going to suggest, just because of -- [ 73 ] THE COURT: Oh, I am sorry, you are right. I -- [ 74 ] MR. FOWLER: I just want to say, "Report by 4:00 p.m. on the day within 24 hours of your release"? [ 75 ] THE COURT: Yes, no, perfection is yet an issue. So within two working days of your release from custody. Thank you. [ 76 ] MR.

MCGOWAN: And perhaps the same with respect to turning in travel documents? [ 77 ] THE COURT: Yes, within two working days of your release is the deposit of passport and that, Mr. Registrar, okay? Thank you. [ 78 ] MR. FOWLER: And then in respect to the passport, I have had a situation before where somebody surrendered a passport to the police and the police then sent it to the passport office rather than retaining possession of it. [ 79 ] THE COURT: Yes, I think that -- [ 80 ] MR.

FOWLER: In the past, I think what happened was passports were surrendered to the registry, but if it is going to be surrendered to the police, then I would prefer to have added, "And kept in the possession of the police." [ 81 ] THE COURT: Is that a problem? Detective, is that a problem? [ 82 ] UNIDENTIFIED SPEAKER: No, Your Honour, no. [ 83 ] THE COURT: Yes. [ 84 ] MR. FOWLER: I mean that is what used to happen. They were just put in the property office, but -- [ 85 ] THE COURT: Yes. [ 86 ] MR.

FOWLER: -- but I have had a couple of times when they have sent it to the -- [ 87 ] THE COURT: They sent it back to -- [ 88 ] MR. FOWLER: -- passport office or, in one case, it was a guy from England and they sent it to the Consulate, the English Consulate, and he could not get out of the country -- [ 89 ] THE COURT: Yes. [ 90 ] MR. FOWLER: -- which is what everybody wanted in the end. They wanted him out of the country, but he could not leave because -- [ 91 ] THE COURT: Yes.

[ 92 ] MR. FOWLER: -- they surrendered his passport to the Consulate. [ 93 ] THE COURT: Okay, so the condition about surrendering to Detective Lisa Byrne, just add in there, "And kept in the possession of the Vancouver Police Department." [DISCUSSION RE BAIL CONDITION OF BEING ALONE WITH FEMALES] [ 94 ] THE COURT: I am going to word it, "You must not be alone in the company of a female who is not a family member in any private place," and that pretty well covers -- including private motor vehicles, residences, hotels. [ 95 ] MR.

WOLFE: It may be instructive if Your Honour can amplify a little bit the concept of private because the concept of private and public has been thrashed about quite a bit in the case law. [ 96 ] THE COURT: Well, yes, but it is -- [ 97 ] MR. WOLFE: So -- [ 98 ] THE COURT: -- it is pretty clear what the intent is. Now, counsel, do you have any qualifiers to that? [ 99 ] MR.

MCGOWAN: No, I think the condition now is crystal clear, not to be alone in the company of a female other than a family member in any private place which includes residences, hotels, and private motor vehicles. [ 100 ] THE COURT: Okay. [ 101 ] MR. MCGOWAN: That seems to cover it, I think. [ 102 ] THE COURT: Okay, including in any private place including any residences, hotels, motor vehicles. Okay. Anything else, counsel? [ 103 ] MR. MCGOWAN: One very minor matter, Your Honour. With respect to the condition not to serve or provide, I believe it was a beverage -- [ 104 ] THE COURT: Beverage. [ 105 ] MR.

MCGOWAN: -- to any female. I wonder if there might be an exception for family members, he does care for a young niece who is female. [ 106 ] THE COURT: Yes, for that condition, Mr. Registrar, there will be an exception, except to any family members. You will not serve, provide, or purchase any beverage for a female except any family members. All right. Any other questions? Now, Mr. Fowler, this does require him to live with his surety, but I hope there will not be a problem. If it is, you will come back, I guess. [ 107 ] MR.

FOWLER: Yes, thank you very much, Your Honour. [ 108 ] THE COURT: All right, thank you. [ 109 ] MR. FOWLER: We need a returnable date. [ 110 ] THE COURT: Counsel, what is your returnable date? [ 111 ] MR. FOWLER: We were suggesting [ 112 ] MR. WOLFE: How about three weeks -- [ 113 ] MR. MCGOWAN: Three weeks, Your Honour. [ 114 ] MR. WOLFE: -- to come back, Your Honour. Will Your Honour be in 307? [ 115 ] THE COURT: Now, these -- and I am sure, counsel, you will explain to your clients, Mr. Lai and Mr.

Law, the import of having to report to the High Risk Offender Unit if the bail supervisor directs that because that unit will know every move they make. I am sure you will impress upon them the importance of following every condition to the tee because, in my mind, those conditions are necessary to address the risk and if, for some reason, they are not met, then there will be a serious problem with properly addressing that risk. [ 116 ] MR. FOWLER: Yes. [ 117 ] MR. MCGOWAN: Yes. [ 118 ] MR.

FOWLER: We will make that very clear, thank you, Your Honour. (REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING CONCLUDED)