Court File and Parties

Court File No.: CR-20-40000282-0000 Date: 2023-08-31 Ontario Superior Court of Justice

Between: His Majesty The King, Respondent

• and - Zhu Xi Shen, Defendant/Applicant

Counsel: Daniel DeSantis, for the Respondent Crown Sara Little, for the Defendant/Applicant, Zhu Xi Shen

Heard: August 28, 2023

Ruling on Defence Application for Judicial Interim Release

N.J. Spies J.

Overview

1On May 23, 2023, I convicted Mr. Shen of sexual assault, contrary to s. 271 of the Criminal Code: see R. v. Shen, 2023 ONSC 2943 (“Reasons for Judgment”). I found that Mr. Shen sexually assaulted the complainant twice: once, when she was unconscious and had no capacity to consent to any form of sexual activity; and second, when she was awake when she did not consent to sexual intercourse with him.

2I began reading my Reasons for Judgment on May 16, 2023, but was not able to finish because no Mandarin interpreter was available. Once I completed reading my Reasons for Judgment on May 23, 2023, Mr. DeSantis advised that he was seeking an order pursuant to s. 523(2) of the Criminal Code, vacating the Mr. Shen’s judicial interim release. Section 523(2) of the Criminal Code provides that the court may, if “cause is shown”, vacate Mr. Shen's release on bail until the trial is completed – in other words, until the completion of sentencing. After hearing submissions from Mr. DeSantis, and Mr. Shen’s trial counsel I granted the order, primarily because I concluded that Mr. Shen was a flight risk and to maintain confidence in the administration of justice.

3Following his conviction, Mr. Shen discharged his trial counsel and retained Peter Thorning of Brauti Thorning LLP to represent him for sentencing and for an anticipated appeal. Mr. Shen now seeks to have his conviction re-opened to permit him to challenge the admissibility of video evidence tendered at trial that I referred to in my Reasons for Judgment. As a result, I adjourned Mr. Shen’s sentencing hearing so that this Charter application could be heard.

4Pending the hearing of Mr. Shen’s Charter application, he seeks an order for judicial interim release on the basis that there has been a material change in circumstances since I ordered his detention. Following the hearing of his application I reserved my decision and on August 30, 2023, I dismissed his application and gave oral reasons. I advised that I would provide written reasons. These are my reasons.

Issues

5Although counsel were not aware of any case where in these circumstances a bail review application has been brought before the trial judge, there was no dispute that I have the jurisdiction to hear the application. Although counsel did not refer to any law on the point, the decision of R. v. Ali, 2020 ONCA 566, suggests that a defendant can re-apply to the trial judge in these circumstances. The only alternative is to seek leave to appeal to the Supreme Court of Canada.

6The argument of the application proceeded on the basis that the onus is on Mr. Shen to satisfy me that there has been a material change in circumstances and if so, that his detention can be argued de novo and that the usual grounds ought to be considered.

7The proposed plan of release includes the addition of one more residential surety, a significant increase in the amount of money pledged and ankle monitoring. Ms. Little argued that there have been two material changes: one, being the terms of the proposed release plan; and the second, the fact that there is now a Charter application to reopen the trial and argue a s. 8 Charter breach and seek to exclude video evidence that was introduced into evidence before me without objection of trial counsel, pursuant to s. 24(2) of the Charter. The remedy sought is a mistrial.

8As it appears that at the time I made the detention order, the addition of ankle monitoring was not suggested, and given Mr. DeSantis’ concession that the addition of ankle monitoring to a release plan is a material change, which accords with my view, I proceeded to hear the application on its merits. I therefore did not consider whether the fact the Crown has consented to re-opening the trial so that Mr. Shen can bring his Charter application constitutes a material change.

9It is the position of Mr. DeSantis that the proposed plan of release does not satisfy the primary or tertiary grounds. There is no concern on the secondary grounds as Mr. Shen has no criminal record.

The Reasons for my Original Detention Order

10Although four years have passed since Mr. Shen was arrested and granted bail and there have been various variations of that bail and he has not had any issue while on bail, I found that since he has been convicted of a very serious sexual assault offence, that he has lost the presumption of innocence. I also found that he has an incentive to avoid facing a lengthy sentence and that he is a flight risk. In this regard, I found that Mr. Shen has the means to abscond, that he has few ties to Canada as a Chinese national here on a work visa that followed a study visa, and that the amount of bail posted and pledged was not significant enough to deter him.

11Mr. DeSantis informed me that Mr. Shen had purchased a one-way ticket on April 26, 2023 to fly to Frankfurt on May 22, 2023, and then on to Hong Kong and a copy was entered into evidence. The ticket had been cancelled although there was no evidence before me then as to when. With respect to this evidence, I stated the following in my reasons:

Mr. Inoue argued that when Mr. Shen bought this ticket, he was expecting judgment on May the 8th and that is correct. That is the date that we had set. I have reason to believe that that was the date that would have been set at the end of the submissions on March the 8th. On this basis Mr. Inoue argues that when Mr. Shen bought this ticket he was expecting to be acquitted on May 8th and, as he put it, getting on with his life, which I guess would mean going back to China to get on with his life.

But Mr. Inoue also argues, which makes more sense to me, that Mr. Shen would want to get on with his life here in Canada. The one-way ticket to Hong Kong only makes sense if his plan was to get his affairs in order and leave Canada if convicted. Mr. Inoue argued the fact the ticket was cancelled shows an intention to stay, but yesterday of course Mr. Shen did not know that he was going to be convicted. He also may not have known that the Crown could or would ask to revoke his bail.

12In terms of the tertiary grounds, I found that they are all very strong in favour of detention given my concerns about the flight risk under the primary grounds and given Mr. Shen is facing a lengthy sentence.

The Proposed Plan of Release

13Mr. Shen proposes to add a residential surety, increase the amount pledged for bail, and have conditions in place that Ms. Little argued would ameliorate the risk on the primary grounds.

14Mr. Shen’s current surety, Yi Qing (aka Shirley) Chen is prepared to pledge up to $100,000 a significant increase from the $25,000 in the cancelled bail. She is not able to post any cash as she only has equity in a condominium that she owns as an investment property. Mr. Shen also proposes a friend as a new surety, Zi Yi (aka Andy) Zhou, who is willing to pledge up to $300,000, based on equity that he has in an investment condominium. In addition, the $25,000 in cash that Mr. Shen said was funded by his parents is to be applied to his new bail if granted.

15There were some inconsistencies in the proposed plan of release as set out in the affidavits, but during Ms. Little’s submissions, the plan proposed is as follows:

(a) To reside at 65 Manila Avenue, Markham, Ontario (the home of Ms. Chen) or 60 Adena Meadows Way, Aurora, Ontario (the home of Mr. Zhou);

(b) Not to leave your place of residence unless in the continuous company of one of your sureties, save for a medical emergency or for employment purposes in which case you can be in the company of Ms. Chen’s son Ryan, will act as her designate;

(c) Remain in detention until a GPS monitoring device is available and has been placed on your person;

(d) Be subject to GPS monitoring as part of the government-funded GPS monitoring program. By signing Schedule "A" to this Release Order, you agree to abide by all rules and protocols of the monitoring program. These rules and protocols are an integral part of this bail order;

(e) Surrender your Chinese passport immediately; and not seek or apply for any travel documents;

(f) Not to be within 250 metres of any international port of travel, including any airport, railway, or bus depot;

(g) Not to attend at the Chinese Consulate located at 240 Saint George Street, Toronto, Ontario or any other Chinese Consulate; and

(h) Remain in the Province of Ontario.

The Evidence

16Both counsel devoted a lot of space in their factums to the defence Charter application that has now been filed, although Mr. DeSantis has not yet had an opportunity to file his formal response.

17Once Mr. Thorning received disclosure from Mr. Shen’s trial counsel, he realized that a copy of the Information to Obtain that secured the warrant to search cell phones seized during Mr. Shen’s arrest had never been requested by trial counsel nor disclosed. Once he obtained that disclosure from Mr. DeSantis, he decided to bring the Charter application, arguing that the search warrant only permitted the extraction of photographs, not videos, and that accordingly, there had been a breach of Mr. Shen’s s. 8 Charter rights. I will come to how I considered the Charter application in my analysis.

18On the application for judicial interim release, Mr. Shen filed an affidavit that he swore and affidavits from his two proposed sureties. I heard from one surety and in response to questions that I had about the ankle monitoring, I received information from Recovery Science Corporation (“RSC”) that Mr. DeSantis conceded was accurate. After Ms. Little completed her oral submissions, I permitted Mr. Shen to testify.

Mr. Shen

19Mr. Shen is 24 years old. He was born in China and came to Canada in January 2015 on a student visa to go to high school here. He then attended the University of Toronto, earning his degree last year in media and economics. Mr. Shen’s status is that of a citizen of China residing in Canada as a foreign national on a working Visa.

20Before his conviction, Mr. Shen was residing at 65 Manila Avenue in Markham, Ontario with his surety, Ms. Chen, whom he described as a mother figure who cooks for him and chastises him just as she does her son Ryan who is 25 years old. Mr. Shen has a good relationship with Ryan and testified that he is also close to Ms. Chen’s younger children whom he treats like siblings.

21In his viva voce evidence, Mr. Shen testified that his parents work for the Chinese government. His mother is a police officer, and his father works for an internal affairs bureau for the city where he was born. They supported him financially when he was in high school with the rent of a condominium in Grade 12 and gave him money to start a bubble tea business. He testified that they continue to support him financially but that he is now earning income and pays his day-to-day expenses. His parents are paying his legal expenses.

22Mr. Shen testified that he used to go to China once or twice per year but that because of COVID, he had not been back for four years. He has now spent about half of his life in Canada, and he testified that he wants to stay here. He has friends and business interests here.

23Mr. Shen, in his affidavit, explained his experience briefly while being incarcerated at the Toronto South Detention Centre and since July 18th, 2023, the Toronto East Detention Centre. I accept this evidence in his affidavit that he has experienced some harsh conditions in custody and difficulty in having access to his counsel.

24Surprisingly, Mr. Shen’s affidavit did not comment on the one-way ticket that he bought to fly to Hong Kong on May 22, 2023, notwithstanding my reference to it in my reason for detention. When I commented on that during Ms. Little’s submissions, Mr. Shen decided that he did want to testify, and he provided some evidence on how and why he purchased the ticket. He testified that he purchased it at the end of April using mostly Aeroplan points and that it was a one-way ticket because he found a deal on Aeroplan for a business class ticket. At the time he did not think it would be a breach of the terms of his release and he testified that he only intended to fly if he was acquitted. He wanted to visit his parents and grandfather whom he had not seen for four years. His intention was to return to Canada.

25The original date I was to give judgement was May 8, 2023. Mr. Shen testified that he was going with Ms. Chen to Vancouver on business on May 18, 2023, for a concert they had arranged there. I am not sure how this related to the ticket as it was to go direct to Frankfurt and not Vancouver. Mr. Shen testified that when he found out additional time was needed for my decision and that a date of May 23, 2023 was being proposed, he asked his trial counsel to request that it be moved to an earlier date which I granted, namely May 16th. According to Mr. Shen, on that date, when he came to court, he was told that Mr. DeSantis was going to ask that his bail be revoked if he was convicted. When I was not able to finish reading my Reasons for Judgment, Mr. Shen asked that rather than continue without an interpreter, as he had during the trial, that the matter go over to May 23, 2023, the original date I proposed. He testified that he had a feeling from what I had read that “it was not going my way”. According to Mr. Shen, he cancelled this air ticket on May 20th or 21st.

26Mr. Chen testified that although he knows there is no extradition treaty between Canada and China, he wants to deal with this matter because if he runs away, he will always have a warrant for his arrest hanging over his head as lots of countries have an extradition treaty with Canada. Mr. Shen was aware that Germany and Hong Kong have extradition treaties with Canada, and that if his intention was to flee, he would have bought a direct ticket to China.

27Mr. Shen admitted that he now realizes, if he had travelled to China while on bail he would have been in breach of the terms of his release, but that he did not know this when he purchased the ticket. He testified that he assumed he would be found not guilty and then would go home for a visit. However, Mr. Shen gave a very convoluted reason in his evidence for why he did not tell Ms. Chen about his plans at the time, if he considered them to be legal, stating that he knew that she would blame him for not waiting a few more days and would tell him to take it slow. This evidence made no sense. Given his relationship with Ms. Chen and given his evidence that he did not think he was doing anything wrong at the time, it makes no sense that he would not tell her that he planned to visit his parents, having not seen them for four years.

Ms. Chen

28Ms. Chen is 48 years old and came to Canada more than 20 years ago. She is a Canadian citizen and has been married for 26 years and has three children. Ryan is 25 and her younger children are 14 and 10. She has known Mr. Shen for about five or six years. She knows his parents and the other proposed surety, Mr. Zhou.

29Ms. Chen’s five-bedroom home is owned by her father-in-law. She and her husband and her three children live with her in-laws in this home. Mr. Shen stays in the basement.

30Mr. Shen worked for Ms. Chen’s company; Vin Media, located at 2345 Keele Street, until he was detained. Vin Media is a very new business and arranges concerts and advertisements. Ms. Chen would like Mr. Shen to continue to work there. In her affidavit, Ms. Chen deposed that if Mr. Shen is released, she would like to designate her son Ryan, to be her designate for employment purposes. Ryan also works for her company. Ms. Chen deposed that she could ensure that she knows Mr. Shen’s location because it can be shared with her by his cellphone. In addition, she could call her son and/or Mr. Shen frequently and at random to ensure his compliance with the conditions of bail when he was not with her.

31Ms. Chen testified that she would drive Mr. Shen back and forth to work from her home from Monday to Friday but that she does not work on Saturdays. No reason for why Mr. Shen would need to work on Saturdays was given.

32There was no issue with Ms. Chen’s evidence that she has more than $100,000 in equity in a condominium that she owns as an investment property.

33Ms. Chen’s affidavit did deal with the cancelled one-way airline ticket Mr. Shen purchased. She deposed that she was not aware at the time that Mr. Shen purchased this ticket. In her viva voce evidence, she testified that Mr. Shen first told her about this ticket in the car, when they were on the way to court on the second the day of my giving judgment, May 23, 2023. Mr. DeSantis challenged this and suggested that she first found this out when it was discussed in court after the conviction, but she remained firm in her evidence.

34Ms. Chen testified that when she found out about this ticket she was surprised and angry and that she criticized Mr. Shen for doing this. Ms. Chen admitted that she knew that Mr. Shen had put her pledge in jeopardy and that if he had fled to China, it would have been a breach of his bail. Although there was an issue about whether Mr. Shen’s terms of bail permitted him to leave Canada, Ms. Chen admitted that she understood that he was not allowed to do so as there was a curfew imposed as a term of his release.

35Ms. Chen gave some hearsay evidence in her affidavit, and I did not permit Ms. Little to explore it further when she gave her evidence. I did permit Mr. DeSantis to ask some questions about this, but only to the extent that it was relevant to what Ms. Chen believed at the time. Ms. Chen’s evidence is that she does not believe that Mr. Shen was intending to flee. She gave as the basis for her belief the fact that Mr. Shen has resided in Canada for about a decade and has friends and business interests here. She believes that he is motivated to defend this case, in part, because he wishes to remain in Canada.

36Ms. Chen travels both for holidays with her family and for work. The frequency of these trips and length varies but it is proposed that in her absence, Mr. Shen would live with Mr. Zhou who would supervise him.

Mr. Zhou

37Mr. Zhou is 33 years old and is a friend of Mr. Shen’s. He was born in China, came to Canada in 2008 and is a Canadian citizen. He resides at 60 Adena Meadows Way, Aurora, Ontario with his mother. They would have room for Mr. Shen if he was ordered to live there.

38Mr. Zhou graduated from Sheridan College with a Bachelor's Degree in Animation. He currently works as a tattoo artist at a location that is about a two-minute drive from Ms. Chen’s residence. He generally works five days a week from 12:00 pm to 7:00 pm, but deposed that his hours could be flexible, and he is in control of them.

39There was no dispute that Mr. Zhou owns a condominium that has slightly more than $300,000 in equity.

40Mr. Zhou is aware of the proposed release terms and deposed that in addition, he could ensure that he knows Mr. Shen's location because it can be shared with him by his cellphone and that he could call and visit Mr. Shen frequently and at random to ensure his compliance with the condition of bail.

Recovery Science Corporation

41In response to questions I asked of counsel, it was agreed that should Mr. Shen be permitted to leave the home while in the presence of his surety for any purpose (i.e., not limited to employment purposes), when he and his surety left the home, the surety would be required to take a contemporaneous video of themselves with Mr. Shen and upload it using an app. This would allow RSC to ensure that Mr. Shen was only leaving the house in the presence of his surety. RSC would then monitor his location until Mr. Shen returned home.

42Should Mr. Shen be permitted to leave the house only for employment purposes, in addition to the app, Mr. Shen and the surety would call RSC to advise they were leaving the home for that purpose. RSC would be aware of the workplace address and would monitor Mr. Shen’s location to ensure that he traveled from the house to his workplace and remained there until he returned home.

43I was also advised that RSC can designate as many "restrictive zones" as needed for Airports/Train Stations/Buses and that they frequently do this for ports of entry. In that case, if an ankle monitor wearer enters or approaches a certain radius of the restricted zone, RSC is alerted.

Analysis

44Detention may be justified on the primary ground if Mr. Shen’s detention is “necessary to ensure his attendance in court”. There are several factors to consider in determining this question. First, Mr. Shen has been found guilty of a very serious offence and Mr. DeSantis has stated that he will be seeking a lengthy a sentence. Although I appreciate that the defence is now seeking to re-open the trial and have a mistrial declared, that would mean a third trial for Mr. Shen and if convicted again, his only recourse would be an appeal. I am not able to comment on the strength of the defence Charter application at this time, nor his chances on appeal.

45Mr. DeSantis argued that although the amount pledged is now significant, Mr. Shen’s parents may be able to indemnify the sureties should they be required to pay some, or all the amount pledged. I have no specific information as to the assets held by Mr. Shen’s parents, but they clearly do have some financial means. That said, I have no evidence to suggest that the sureties would be indemnified by them and so I will consider this matter on the basis that the sureties are each pledging their own funds.

46I am satisfied that the proposed sureties are suitable sureties, are aware of Mr. Shen’s conviction and the nature of the underlying criminal conduct and that they understand their duties as a surety and the financial risk they are taking to make sure that Mr. Shen follows any conditions this Court imposes on him, and that if he fails to do so they would call the police. I am also satisfied that they have pledged a significant amount of money that they cannot afford to lose.

47Ms. Little submitted that the purchase of the one-way ticket by Mr. Shen is a red herring and that the improved terms of release address any concerns on the primary ground. Mr. DeSantis disagreed and submitted that I should not accept Mr. Shen’s evidence about why he bought the airline ticket and his evidence that he would not have flown to China had he been convicted.

48I do accept Mr. Shen’s evidence that he thought my decision was not going his way when I had to adjourn reading the rest of it on May 16th, given what I had stated to that point. It is therefore significant that he decided to cancel the ticket after that. As Ms. Little submitted, if he really intended to flee, he would not have done so, although this ticket was not a one-way ticket to China. However, I still have concerns about Mr. Shen’s decision to buy a one-way ticket in the first place and the fact he did not tell Ms. Chen that he did so. This suggests that he did intend, at least at that time, to flee to China and at the very least it demonstrates a disrespect for Ms. Chen, given she was his surety at the time.

49I accept that Mr. Shen wants to stay in Canada and wants to overturn his conviction. If his conviction stands, counsel agree that Mr. Shen will be deported back to China. He is an intelligent man and clearly aware of extradition treaties, given his evidence, and I do not accept his evidence that he would rather spend a significant amount of time in detention – the Crown is seeking a five-year sentence – rather than flee to China if he could, if he is not able to overturn his conviction. I therefore find that Mr. Shen has a strong motivation to flee to China if my conviction stands. His parents want him home and given the financial support they have provided to him to date and continue to provide, I can only assume that they have the financial means to help him leave Canada. They are also employed by the Chinese government where they could likely obtain assistance in getting their son the travel documents needed to come home.

50The issue then is whether the proposed terms of release address my concern that Mr. Shen is a flight risk.

51In considering the risk of flight I have considered the fact that it is not proposed that Mr. Shen be under strict house arrest and even if I were to order that, he would not be supervised 24/7 by one of his sureties. There does not appear to be any way that I can ensure that Ms. Chen or Mr. Zhao be in Mr. Shen’s company 24/7. Both work and Ms. Chen travels out of the country. Ryan is not a surety and is a friend of Mr. Shen’s. Although I appreciate that I can tighten up the proposed terms of release, realistically all I could ensure is that Mr. Shen remain at Ms. Chen’s place of business or her home or Mr. Zhou’s home or otherwise that he be out with one of them, assuming I can rely on the ankle monitoring.

52What then is the impact of Mr. Shen wearing an electronic monitoring bracelet from RSC?

53Mr. DeSantis relies on R. v. Ma, 2015 ONSC 7709, [2015] O. J. No. 6684, a decision of Justice Goldstein of this court. In that case, Goldstein J. found concerns on the secondary ground and that the commission of further offences was a real concern despite the defendant wearing an ankle monitor in that he could simply cut off the bracelet and walk out of the house and commit further offences (at para. 56). By analogy, Mr. DeSantis argued that in this case Mr. Shen could cut off the ankle bracelet at which point the police would have no way of knowing where he was or where he was going.

54In my view, the value of ankle monitoring depends on the circumstances of the case. I have accepted the use of ankle monitoring as a means of enhancing a plan of release in cases where there have been secondary ground concerns.

55In this case, if Mr. Shen wears an ankle monitor, it would give police a GPS trail so long as the bracelet was on and functioning. That is certainly an improvement from the original terms of bail. However, since Mr. Shen will not be under strict 24/7 supervision by one of his sureties under the proposed plan, and given his motivation to flee the jurisdiction and his means to do so, if he were to remove the ankle bracelet, which could be done quickly with the right tool, he could, as Mr. DeSantis argued, disappear, and not be found by police and could go anywhere to get emergency travel documents.

56An ankle monitoring device does not restrict Mr. Shen’s movements and would only tell police where he last was. As Justice Trotter stated in United States of America v. Ugoh, 2011 ONSC 1810, at para. 11: “Electric monitoring cannot prevent someone from absconding; it merely helps notify the authorities when the person has left.” (See also The United States of America v. Pannell.)

57For these reasons, I find that Mr. Shen has not satisfied me that he is not a significant flight risk even under the new proposed plan of release. For these reasons, I find that his detention is necessary on the primary ground.

58In light of my decision, it is not necessary to deal with the tertiary ground, but had it been, I would not likely have found that detention was necessary solely on the tertiary ground as argued by Mr. DeSantis. Although Mr. DeSantis ably argued why all the factors on the tertiary ground point to detention, the reality is that if Mr. Shen was not a flight risk, the Crown would not likely have asked to revoke his bail at the time of his conviction. Although I appreciate that the tertiary ground is a free-standing basis for detaining a defendant, it seems that considering this practicality, that it is my finding on the primary ground that should determine this application.

Disposition

59For these reasons, the application for an order granting judicial interim release is dismissed.

Spies J.