ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CNJ-7425
DATE: 2012-04-02

B E T W E E N:

Her Majesty the Queen

Mark Poland, for the Respondent

Respondent

• and -

David Vu

Kim Schofield, for the Applicant/Accused

Applicant/Accused

HEARD at Kitchener, Ontario: March 22 & 23, 2012

The Honourable Justice J. R. Henderson

REASONS ON BAIL REVIEW

Introduction

1The accused, David Vu (hereinafter called “Vu”), appears for a bail review pursuant to s.520 of the Criminal Code of Canada ( the “Criminal Code”) . The order that is under review is the order of Justice of the Peace Magoulas, dated August 17, 2011, whereby Vu was detained in custody pending trial.

2At this bail review defence counsel submits that there have been material changes in circumstance since the bail hearing that would justify the release of Vu pending trial with sureties and on strict terms.

3Vu is charged with four criminal offences as follows:

1. Attempted murder while using a firearm.
2. Assault with a weapon.
3. Pointing a firearm.
4. Robbery by use of a firearm.

4All four charges arise out of an incident that occurred on July 6, 2011 in a parking lot in Waterloo, Ontario. In each count Vu is alleged to have used a .45 calibre handgun, and the victim in each count is alleged to be Andrew Balogh (hereinafter called “Balogh”).

The Bail Hearing

5Vu was arrested on July 29, 2011 in Calgary, Alberta, pursuant to a Canada-wide warrant that had been issued for his arrest as a result of this incident. He has been detained in custody since that time.

6At the bail hearing the Justice of the Peace heard a proposal that Vu be released on a recognizance with two named sureties, Vu’s mother, Wendy Vu (hereinafter called “Wendy”), and Wendy’s husband, Roger Das (hereinafter called “Roger”). Wendy and Roger live together in a condominium in Toronto, and the proposed plan was for Vu to live with them in their condominium under their supervision.

7That proposed plan was rejected by the Justice of the Peace who felt that neither surety had a strong bond with Vu, and neither surety had the requisite amount of influence over Vu. Therefore, Vu was detained in custody on all three of the grounds for detention set out in s.515(10) of the Criminal Code .

The Proposed Plan

8Defence counsel now proposes a revised plan for Vu’s release. The same two people, Wendy and Roger, are proposed as sureties, but defence counsel submits that the revised plan is tighter and more restrictive. The proposal is for Vu to essentially be under 24 hour per day house arrest. He would reside at the sureties’ condominium and not be permitted to leave the condominium except in the presence of Wendy or Roger.

9Furthermore, defence counsel suggests that the two sureties have developed a much closer relationship with Vu since his arrest as they have both visited him twice per week at the detention centre for the past eight months. Defence counsel suggests that this closer connection with Vu, combined with the tight restrictions at the condominium, should satisfy any concerns the court may have for Vu’s release.

The Background Facts

10The victim of these offences, Balogh, is an acknowledged marijuana dealer in the Waterloo area. Jesse Welch (hereinafter called “Welch”), an acquaintance of Balogh, contacted Balogh on July 6, 2011 to arrange for Balogh to sell approximately five pounds of marijuana to a third party, who was a person unknown to Balogh. Balogh agreed to meet Welch and the third party in a parking lot at a plaza in Waterloo to consummate the transaction.

11Meanwhile, in the previous two days, Vu and two male acquaintances had travelled from their residences in Calgary to Toronto to Waterloo. It is now clear that all three of these male persons intended to become involved in this drug transaction.

12Balogh arrived at the designated parking lot in Waterloo at approximately 10:15 pm on July 6, 2011, with a duffle bag that contained the marijuana. He met Welch and another person who was introduced to him as Alex. I note that the person introduced as Alex is now identified by Balogh as being the accused Vu.

13After a brief discussion Balogh entered the front passenger seat of a RAV 4 motor vehicle that had been parked in the area by one of the involved parties, with the intention of consummating the drug deal in the vehicle. Instead of entering the RAV 4 with Balogh, Vu pulled out a handgun, pointed it at Balogh and threatened him. Then, Vu struck Balogh in the head with the gun several times, causing a significant wound that later required stitches.

14Balogh tried to escape by getting into the driver’s seat of the RAV 4 vehicle, but at that point another male entered the vehicle from the passenger side and started hitting Balogh. That male also tried to wrestle the duffle bag of marijuana away from Balogh. At the same time Vu walked to the driver’s side of the RAV 4, opened the driver’s door, and stood pointing the handgun at Balogh’s head.

15There is no direct evidence that anyone attempted to fire the handgun, but three rounds of ammunition were later found in the vicinity of the driver’s door of the RAV 4 vehicle. Also, there is some evidence that someone shouted “Shoot him. Shoot him”. Balogh cannot testify as to whether the handgun was actually fired, and Balogh in fact was not struck by any bullets.

16Balogh was able to place a 911 call from his cell phone, although the call was dropped shortly after the connection was made. Thereafter, all of the parties were intent on leaving the scene before the police officers arrived.

17The other male in the RAV 4 was able to wrestle the duffle bag of marijuana away from Balogh, and then he jumped into a black Nissan motor vehicle that was also parked in the vicinity. Then, before anyone left the scene, Balogh was able to get to the black Nissan, open the rear door and grab the duffle bag back. At that time, Balogh testified that there were four male persons inside the black Nissan, including Vu.

18Several police officers responded to the 911 call and, among other things, found the abandoned RAV 4 motor vehicle in the parking lot. Their investigation led them to quickly locate and arrest Balogh and Welch. Then, on the next day they arrested three male persons and a female at a hotel in Cambridge.

19The only involved person who was not arrested within a short time after the incident was Vu, who flew back to Calgary via Toronto on July 8, 2011.

General Principles on a Bail Review

20In considering the proposed plan I must take into account certain general principles that apply on all bail review applications.

21First, the Canadian Charter of Rights and Freedoms (the “ Charter ”) provides at s.11(d) that an accused has the right to be presumed innocent until proven guilty at a trial. Therefore, at this point, despite the seriousness of the charges, Vu is presumed to be innocent of all charges.

22Also, s.11(e) of the Charter states that an accused has the right not to be denied reasonable bail without just cause.

23Another general principle of bail reviews is that the detention of an accused person is justified only if one or more of the grounds, known as the primary, secondary, and tertiary grounds, set out in s.515(10) of the Criminal Code , apply. In this case, the Justice of the Peace detained Vu on all three grounds, and the Crown relies on all three grounds at this bail review.

24The final general principle that I must keep in mind in this case relates to the onus on a bail review. In this case, the onus is on Vu to prove that his detention is not necessary. That is, there is a reverse onus on the accused on this bail review.

The Nature of a Bail Review

25A bail review pursuant to s.520 or s.521 of the Criminal Code is a review of the bail status of an accused. It is not a hearing de novo and it is not an appeal on the record. It is a review. See the cases of R. v. Hunter (1973), 24 C.R.N.S. 197 and R. v. Carrier (1979), 51 C.C.C. (2d) 307 .

26The reviewing court should consider the evidence adduced at the bail hearing, the reasons of the Justice of the Peace, any alleged error made at the bail hearing, and any material change in circumstance since the bail hearing.

27I accept defence counsel’s submission that the material change in circumstance factor should not be narrowly applied. I agree with the view of Doherty J. in the case of R. v. Saracino (1989), 47 C.C.C. (3d) 185 , at page 187, that the bail review provisions “ favour flexibility and re-evaluation of an accused’s bail status over finality of any particular order made affecting that status .” That same view was confirmed and reiterated by Hill J. in the case of R. v. Ferguson , [2002] O.J. No. 1969 , at paras. 13 and 14 .

28In the present case, defence counsel suggests that there are several material changes in circumstance. The most prominent suggested change is that the two proposed sureties have formed a closer relationship with the accused since the bail hearing.

29It should be noted that Wendy separated from Vu’s father, Martin, in Calgary when Vu was approximately 11 years of age. Vu and his two older brothers lived with Martin in Calgary after Wendy and Martin separated. In approximately 2005, when Vu was approximately 14 years of age, Wendy moved to Toronto with Roger. Between 2005 and 2011 Vu and Wendy saw each other only approximately once per year, although they talked on the telephone two or three times per month.

30At the bail hearing the Justice of the Peace was concerned that the relationship between Vu and the proposed sureties was not close. Now, Wendy and Roger both testified that they have visited Vu at the detention centre twice per week for approximately the last eight months, and therefore they feel that they have a better and closer relationship with Vu than they did at the bail hearing.

31In addition, Roger testified that although he remains employed on a fulltime basis his work schedule has changed such that he has more flexibility. He testified that he has more evenings free to assist in supervising Vu. There have also been some minor changes to the security system at the condominium in which Wendy and Roger live. Cumulatively defence counsel suggests that all of these changes provide the grounds for reviewing the bail status.

32In my view, there has been sufficient change to at least justify a review of Vu’s bail status given the flexible nature of bail reviews in general. In making that statement I also take into account the fact that the passage of time alone may be cause to review a young person’s bail status. In this case eight months of Vu’s young life have gone by while he has been in custody awaiting trial, and the preliminary hearing is not scheduled to start until June 2012.

33Therefore, I am prepared to review Vu’s bail status taking into account the proceedings before the Justice of the Peace, the passage of time, and the changes of circumstance since the date of the bail hearing.

The Strength of the Crown’s Case

34All bail hearings and bail reviews must include an assessment of the strength of the Crown’s case. Consequently, any bail review must take into account any changes in the strength of the Crown’s case. In the present situation I find that the Crown’s case against Vu is stronger now than it was at the time of the bail hearing.

35To prove its case against Vu the Crown relies on Balogh’s testimony to provide the framework for these events. Balogh testified at the bail review, and it was apparent from that testimony that Balogh will be a strong witness for the Crown. Balogh is educated and articulate, and his testimony will have some weight at the trial.

36The Crown also has statements from Welch and from one of the other participants in the incident, Hieu Nguyen (hereinafter called “Nguyen”). In his statement Nguyen identifies “Dave” as the person who held the handgun.

37Additional Crown evidence includes the three rounds of ammunition that were found at the scene in the vicinity of the driver’s door of the RAV 4 vehicle. That ammunition was analyzed and the Crown has a theory, supported by an expert, that the handgun had been fired, but the projectiles were not discharged because the character of the ammunition caused the gun to misfire.

38Since the bail hearing the Crown has obtained records of various cell phones and text messages from and to several participants in these events. These records seem to lay out a complex plan that had been formulated between Vu and at least three other men.

39Also, since the bail hearing the Crown has obtained expert DNA evidence that supports a finding that blood found on the sleeve of a sweatshirt that was worn by Vu was blood that belonged to Balogh.

40In addition, after the bail hearing the Crown obtained expert evidence that discloses gunshot residue on a Prada bag that Vu had been carrying.

41At this point, I find that the Crown has a strong case to prove that Vu was heavily involved in the planned assault and robbery of Balogh. I also find that the Crown has a good case to prove that Vu pointed the handgun at Balogh. I accept that there may be an issue as to when and under what circumstances the handgun was fired.

Analysis of the Three Grounds

42The Justice of the Peace found that the accused had not met his onus on all three grounds set out in s.515(10) . I also have concerns with respect to all three grounds.

43Regarding the primary ground, the court must consider whether detention is necessary to ensure Vu’s attendance in court. In that respect, it is important to recognize that Vu has lived all of his life in Calgary, Alberta, and has never resided in Ontario. Even though his mother has lived in Ontario since 2005, Vu visited her in Ontario at most once per year since then.

44Further, it is apparent that Vu’s only purpose in visiting Ontario in July 2011 was to be involved in criminal activity. He flew out of Calgary to Toronto on July 5, 2011, the offence was committed on July 6 th , and he was back in Calgary by July 8 th .

45Furthermore, Vu has a criminal record. His entire criminal record is a youth record, but it is very troubling. Over 18 months between July 2006 and December 2007 Vu was convicted of failing to comply with a recognizance on five separate occasions, and of failing to comply with a probation order on one occasion. During that same time he was also convicted twice of criminal obstruction offences. Given that record, Vu gives the impression of being a defiant young man who has no respect for the authority of a court order or the rule of law.

46Still further, Vu was well aware of his involvement in the incident of July 6, 2011. His cell phone records also show that Vu was aware that at least two of his buddies had been arrested and were in jail by July 7, 2011. Vu’s reaction to this situation was not to turn himself in or retain counsel, but rather his reaction was to flee the jurisdiction, get on a plane, and return to Calgary.

47All of these factors are troubling with respect to the primary ground.

48Regarding the secondary ground, the court must consider whether detention is necessary for the protection or safety of the public having regard for all the circumstances, including any substantial likelihood that Vu will if released commit a criminal offence. In this respect, Vu’s youth record speaks for itself. In addition to the two obstruction charges, Vu was also convicted twice of the offence of possession of a weapon.

49More troubling, there is police evidence that Vu is associated with a Calgary gang known as “Fresh Off The Boat”. This gang is apparently in conflict with another gang in Calgary, and police officers have provided evidence that the gang has been responsible for as many as 20 homicides. Vu’s association with this gang has not been proved conclusively, and his rank in the hierarchy of the gang is unknown, but there is some evidence of a connection.

50Also, there is strong evidence that the Waterloo incident was the result of a planned organized event that had been orchestrated by Vu and at least three other males. The detailed planning is obvious from the cell phone and text message records that have been produced.

51Further, there are two outstanding warrants for Vu’s arrest in Alberta. First, there is a warrant for his arrest for possession of a small amount of cocaine that had been found in his vehicle in Calgary when it was stopped on July 29, 2011 at the time the Canada-wide warrant was executed. Second, there is a warrant for his arrest on a charge of armed robbery of a computer store in Calgary in conjunction with two other co-accuseds. Significantly, one of the co-accused in the Calgary armed robbery is also a co-accused in the Waterloo incident. It is also alleged that a handgun was used in the armed robbery in Calgary, although it is not alleged that Vu was the person who used the handgun in Calgary.

52Still further, Vu has now been connected to yet another criminal incident in Calgary. In May 2010 investigators found blood in a vehicle that was associated with a stabbing at a Calgary nightclub. After Vu was arrested on the Waterloo charges, DNA samples were taken from him, and Vu’s DNA matched the DNA of blood found in the Calgary vehicle. Charges have not yet been laid against Vu for this stabbing incident.

53Putting all these factors together, the court gets the impression that Vu lived a criminal lifestyle as a youth, and he has continued to live a criminal lifestyle as an adult. Vu’s way of life seems to revolve around illegal activity, in concert with others who are also involved in the same activity. All of this is very concerning with respect to the secondary ground.

54Regarding the tertiary ground, the court must consider whether detention is necessary in order to maintain confidence in the administration of justice. Although the section reads, “ having regard to all the circumstances ”, the section lists four specific factors for consideration, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, and the potential for a lengthy term of imprisonment. In my view, all four of those specific factors weigh heavily against Vu in this case.

55I accept the proposition that where all four factors weigh heavily against an accused, in consideration of all the circumstances, it may be expected that it would be necessary to refuse bail in order to maintain public confidence in the administration of justice. See the case of R. v. Mordue , [2006] O.J. No. 3654 (O.C.A.) at paras. 31 and 32 .

56Therefore, I have significant concerns with respect to all three grounds on this bail review.

The Proposed Sureties

57In the context of my concerns, I must consider the strength of the sureties and the proposed plan for release to determine if Vu has proved that it is not necessary to detain him in custody pending trial. Strong sureties can often overcome the court’s concerns regarding the primary and secondary grounds, and may be considered under the phrase, “ all the circumstances ” regarding the tertiary ground.

58The first proposed surety is Vu’s mother, Wendy. At the bail hearing the Justice of the Peace found that, “ Ms. Vu did not present to this court as forceful enough nor as having the kind of influence over her son needed to be able to enforce court orders. ” Having heard Wendy testify at the bail review, I concur with those findings.

59In my view, Wendy is a sincere person who wants to help her youngest son, but she does not have the strength of character or a strong enough relationship with Vu such that she could influence or direct him.

60Wendy rarely saw her son for approximately six years, from 2005 to 2011. During that time Vu aged from 14 to 20 years of age, and was heavily involved in criminal activity. Thus, Wendy did not have a strong relationship with her son and certainly had no positive influence on him prior to July 2011.

61The fact that Wendy has visited her son two times per week for the last eight months in the detention centre is positive and may improve their relationship, but I am not convinced that 20-minute visits twice per week in an artificial setting such as the detention centre would create a relationship of such strength that Wendy would now be in a position to control and/or direct her son.

62Further, Wendy testified that she has not talked to Vu about his gang activity or about his involvement in these charges. On the witness stand when asked about these issues she simply said, “I don’t know anything”. Therefore, I have to assume that their conversations at the detention centre were of a general nature and dealt with typical mother/son topics such as Vu’s health. I accept the submission that Wendy probably does not want to know about her son’s criminal activity.

63I also concur with the Crown’s observations that Wendy tended to answer questions on the witness stand by saying things that she felt would help her son. That is, her testimony was not completely frank, but was tailored to make the situation seem better than it was. For example, Wendy testified that she has always been close to her son, but later she said that she meant that she was always thinking about him.

64In summary, given that Vu has been involved in criminal activity for at least six years and has not followed any positive direction from his mother for at least that amount of time, if Vu were now to be released into his mother’s care I have little confidence that he would follow any direction that he might receive.

65The second proposed surety was Roger, who appeared to be sincere and honest. He was more positive and more forceful than Wendy. However, I do not accept that Roger has a strong relationship with Vu. I accept that he is trying to help his wife and her son, and he is well-meaning, but I do not believe that Vu would listen to him.

66Roger and Vu had very little relationship prior to July 2011. His only real contact with Vu has been in the brief twice per week visits at the detention centre in the presence of Vu’s mother. He has attempted to be a strong positive influence on Vu, but I have little confidence that Vu has accepted his direction.

67Roger spent some time preparing a schedule that detailed how he and Wendy would monitor Vu’s activities from approximately 8:00 am to 8:00 pm each day of the week. However, on careful review of the schedule it is clear that most of the monitoring would be done by Wendy, not Roger, as Roger works at least 40 hours per week at his employment. As I indicated earlier, I believe that Vu would not listen to his mother and that Wendy would not be strong enough to deal with Vu’s criminality.

68Moreover, the schedule has some flaws. In particular, the schedule calls for Roger to monitor Vu every evening of the week, but Roger has testified that he works until 9:00 pm two nights per week. Again, this is an example of a surety telling a court what the surety thinks the court wants to hear, rather than dealing with the reality of the situation.

69Overall, I find that neither Wendy nor Roger have such a strong relationship with Vu that either one of them could control or direct him. Even though Wendy and Roger are sincere and well-meaning, I am not convinced that Vu would follow their direction.

70Much was made of the security system in the condominium where Wendy and Roger lived. There is a pass code needed to bypass the alarm system at the condominium residence, and there is a fob required that limits the use of the elevator. Wendy and Roger both testified that they would not give Vu the pass code, nor would they let him use the elevator fob.

71This security system is helpful in that it would restrict Vu’s movements, but it is not foolproof. Given Vu’s criminal lifestyle, and his ability to plan criminal activities in concert with others, I am convinced that he would be able to circumvent this security system if he chose to do so.

Conclusion

72In conclusion, given the serious nature of the charges, given the strength of the Crown’s case, given the likelihood of a lengthy jail term, given Vu’s propensity to defy court orders, given my concerns regarding the three grounds in s.515(10) , and given the insufficiency of the sureties, I find that Vu has not met his onus of showing that it is not necessary to detain him in custody pending trial.

73Accordingly, the bail review application is dismissed. Vu is to continue to be detained in custody pending trial.

Henderson, J.