COURT OF APPEAL FOR ONTARIO DATE: 20210108 DOCKET: M51380 (C68086)

Thorburn J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Kevin Tran Applicant (Appellant)

Counsel: Gregory Lafontaine and Julia Kushnir, for the applicant Jeanette Gevikoglu, for the respondent

Heard: January 7, 2021 by video conference

REASONS FOR DECISION

OVERVIEW

[1] The applicant, Kevin Tran was convicted of a number of drug trafficking offences, possession of a prohibited loaded handgun and two counts of possession of the proceeds of crime over $5000.

[2] He seeks bail pending appeal.

[3] The Crown opposes Mr. Tran’s application for release pending appeal on the basis that the applicant has failed to establish that his detention is not necessary in the public interest under s. 679(3)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

A. BACKGROUND

[4] In October of 2017, police executed three search warrants and discovered significant quantities of illegal drugs, cash and a handgun. Mr. Tran and two co‑accused, Mr. Thanh Nguyen and Catherine Vu were charged.

[5] Prior to the commencement of trial, charges against Ms. Vu were stayed. Messrs. Nguyen and Tran were tried together.

[6] Messrs. Nguyen and Tran brought a s. 24(2) Charter application to challenge the lawfulness of the seizure. The application was dismissed as the court found no basis to conclude that the police did not act in good faith, or that the information provided to the issuing justice was incomplete or misleading.

[7] Both accused also brought a Charter s. 11(b) application to stay proceedings on the grounds that their right to be tried within a reasonable time was breached. That application was also denied. The court held that while the time limit set out in Jordan was slightly exceeded, Mr. Tran’s co-accused’s decision to change counsel constituted an “exceptional circumstance” as defined in Jordan such that there was no unreasonable delay in being brought to trial.

[8] After the disposition of these Charter applications, the applicant was convicted of a number of drug-trafficking and firearms offences for which he was sentenced to 10 ½ years in custody minus time served. His co-accused, Mr. Thanh Nguyen, was convicted of similar offences and received a similar sentence.

[9] Mr. Nguyen was granted bail pending appeal by this court in January 2020.

[10] The terms of Mr. Tran’s proposed release are almost identical to those imposed upon Mr. Nguyen: that is, he seeks to be placed on house arrest in the care of several sureties, posting significant sums.

[11] The Crown notes that in each of the Nguyen and Tran cases, one of the proposed sureties is a girlfriend who was charged with these offences, whose charges were then stayed.

B. DISCUSSION

[12] To obtain bail pending appeal pursuant to s. 679(3) of the Criminal Code, the applicant must establish that: (1) the appeal is not frivolous (s. 679(3)(a)); (2) he will surrender himself into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) his detention is not necessary in the public interest (s. 679(3)(c)). In a s. 679 application, the applicant bears the burden of establishing each of the three itemized release considerations, on the balance of probabilities, before an interim judicial release order may be made: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19.

[13] It is agreed that the applicant has met his onus to establish on a balance of probabilities that the appeal is not “frivolous” within the meaning of s. 679(3)(a): Oland, at para. 20.

[14] It is also agreed that the applicant has met his onus pursuant to s. 679(3)(b), to establish on a balance of probabilities that he will surrender himself into custody in accordance with the terms of the order.

[15] The applicant has no criminal record and he has been on bail pending trial without incident since the time of his arrest.

[16] Moreover, if released, he will be under strict house arrest with three proven sureties who have been his sureties while he was awaiting trial, and a fourth, Ms. Vu who is his girlfriend, the mother of his child and who was a co-accused in this proceeding (though those charges were stayed).

[17] Ms. Vu has no criminal record and has posted $100,000 proposed bail (without deposit). This sum represents half of the equity in her home which is her only significant asset. (Likewise, Mr. Nguyen’s girlfriend, who had been a co‑accused but against whom the charges were stayed, also posted a significant sum in support of Mr. Nguyen’s release.)

[18] Mr. Tran agrees that while Ms. Vu will be a surety, he would be permitted to leave the home only in the company of one of the other three sureties.

[19] An additional $65,000 has been posted by the other three proposed sureties.

[20] The tertiary “public interest” criteria under s. 679(3)(c) considers public safety and public confidence in the administration of justice: Oland, at paras. 23, 26.

[21] Public safety considerations relate to the protection and safety of the public, which tracks the secondary ground requirements: Oland, at para. 24. It is agreed that the applicant meets the public safety considerations which are that: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at p. 737; R. v. Stojanovski, 2020 ONCA 285, at para. 18.

[22] Public confidence in the administration of justice is rarely a central factor in the test for bail pending appeal, though it ought to be considered in circumstances such as this, when the offences are serious: Oland, at paras. 29‑30. The question of public confidence must be assessed from the perspective of an informed member of the public who understands our bail system, and the facts of the case.

[23] The public confidence component involves weighing enforceability, or the need to respect the general rule of the immediate enforceability of all judgments, and reviewability, which concerns the need to provide for a meaningful review process, such that the process does not require persons convicted of offences to serve all or a significant part of their sentence only to have their conviction overturned on appeal: Oland, at paras. 24-26.

[24] The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: Oland, at para. 37. The absence of flight or public safety risks will attenuate the enforceability interest. Other factors should also be considered where appropriate: Oland, at para. 39.

C. CONCLUSION

[25] I conclude that while these offences are serious, the applicant has no criminal history, has never breached his bail conditions during the two years he awaited trial and is therefore a reduced public safety risk, given the stringent terms of the proposed plan of release.

[26] In assessing the reviewability interest, the strength of the appeal is also important: Oland, at para. 40. It is agreed that this appeal is not frivolous. Moreover, “there is a broader public interest in reviewability that transcends an individual’s interest in any given case.”: Oland, at para. 45.

[27] In weighing the enforceability and reviewability interests, I conclude that the applicant’s detention is not necessary in the public interest.

[28] When measured through the eyes of a reasonable member of the public, public confidence in the administration of justice would be maintained if the applicant were to be released pending appeal on these very strict terms, under the supervision of several proven sureties who have posted significant sums. Furthermore, the applicant has never breached the terms of his bail, has no prior criminal record, and his co-accused, convicted of almost identical offences, has already been released on bail by this court.

[29] I reach this conclusion bearing in mind that he has an arguable appeal.

[30] For these reasons, the application for bail pending appeal is granted. The Crown and the applicant have agreed on terms of bail if the applicant is to be released and an order is therefore to issue in accordance with those terms of the draft Release Order filed.

“J.A. Thorburn J.A.”