ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 15-00000299-00BR
DATE: 20151210

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MIN FENG MA

Julie Battersby, for the Crown

Tyler MacDonald, for Min Feng Ma

HEARD: December 4, 2015

PUBLICATION BAN ON NAME OF COMPLAINANTS PURSUANT TO s. 486.4(1) OF THE CRIMINAL CODE

r.f. goldstein j.

[1] On November 24, 2015 a man went to see P.M.C., a sex worker in Scarborough. He came to the door of P.M.C.’s condo in Scarborough. He was not there initially to purchase sexual services but because he was interested in sub-letting her condo. When P.M.C. let him in, he asked her whether she could hear her neighbours. She said she could not. He then allegedly overpowered her, removed her clothing, raped her, and robbed her. He tied her up with duct tape. When the police arrived she was still tied up.

[2] On December 20, 2014 a man went to see A.M.L., a sex worker in York Region. They had consensual sex, which the man paid for. After they had consensual sex he asked for unprotected sex. He offered to pay extra. A.M.L. refused. The man then allegedly overpowered her, raped her without a condom, and robbed her.

[3] The York Region Police and the Toronto Police eventually identified Mr. Ma. He was arrested and charged with both offences. He was denied bail on the secondary and tertiary grounds. He brought a bail review in this Court. He argued that the justice of the peace erred in his application of the tertiary ground; he also argued that there has been a material change in circumstances. I dismissed his application on December 4, 2015 and indicated that reasons would follow. These are my reasons.

BACKGROUND: THE CROWN’S ALLEGATIONS

[4] The following are allegations. Nothing has yet been proven. For reasons that will become apparent, however, the Crown’s case is exceptionally strong.

(a) The Assault on P.M.C.

[5] Mr. Ma allegedly came to the door of P.M.C.’s condo at about 8:15 pm on November 23, 2015. P.M.C. was subletting her condo, as she was moving back to Hong Kong for a period of time. When P.M.C. opened the door to him he removed her clothes, forced her on the bed, tied her hands, and had vaginal intercourse with her. He put a pillow over her head and a sock in her mouth. Shortly after the assault P.M.C.’s boyfriend came to the door of the condo. Mr. Ma put a handgun to P.M.C.’s head. He told her to tell the boyfriend to leave and not to open the door. She did this. The boyfriend left. Mr. Ma then tied her to a chair, using duct tape. He then rifled through her apartment. He found a Bank of China credit card, cell phones, cash, and a Bank of Montreal bank draft showing a balance of $10,000.00. P.M.C. told Mr. Ma that the bank draft belonged to her boyfriend. He asked her about her passport. She said that the passport was with the boyfriend. He told her to text her boyfriend to return to the apartment with his Bank of Montreal card and her passport. She texted him but he did not return.

[6] Mr. Ma left in the early morning hours of November 24, 2014. He had been there several hours. During the course of the assault Mr. Ma told P.M.C. that his wife was pregnant and that his parents had taken his house from him. He also said that his wife had been a prostitute and had three abortions.

[7] Although P.M.C. was tied up, she managed to attract the attention of building security. Building security called the police. The police came, and found her bound with duct tape to a chair. Mr. Ma had allegedly been at the apartment for seven hours. He threatened to kill her several times if she did not do as he told her, brandishing the handgun.

(b) The Assault on A.M.L.

[8] On December 20, 2014, A.M.L. was working for an escort service called Sweet Sweet. The agency arranged a date with Mr. Ma for her. Mr. Ma came to her condo at 7:03 p.m. They had consensual sex, which he paid for. He ejaculated into a condom, which she discarded. She permitted him to touch her breasts, and she stroked his penis. They talked. He told her he was married with a child on the way. He then asked if they could have sex without a condom. She refused. He offered to pay for sex without a condom. She repeatedly refused. He then forced his penis inside her vagina. He took an Exacto knife out and put it to her neck. He put her underwear in her mouth and warned her not to talk or he would kill her.

[9] He then took some of her belongings, including her iPhone and iPad, shoes, clothing, jewellery, her wallet, purse, identification, and cash. He also took her RBC debit card. He demanded the PIN numbers for her electronics and the debit card. He also took her passport. He then left. She then ran outside her condo and called for help. Neighbours called the police.

[10] In her police interview A.M.L. gave a detailed description of Mr. Ma. I will just mention his tattoos: he had a tattoo on one arm with words along the lines of “too young to die, too old to…” and she could not remember the rest. On his other arm was a tattoo of a woman praying. A.M.L. also said that he had abdominal scars.

(c) The Investigation And Identification of Mr. Ma

[11] The Toronto police obtained a production order for the telephone number that had been used to contact P.M.C. The phone was registered to Mr. Ma. A police occurrence report indicated that in July 2014 Mr. Ma’s parents called the police for assistance in removing him and his pregnant wife from the house, which was located at 39 Sunbird Crescent. Mr. Ma thus became a suspect.

[12] The police also learned that someone had attempted to use P.M.C.’s Bank of China credit card at the Bell store in the Pacific Mall later on the same day that Mr. Ma had left P.M.C.’s condo. They obtained video images of Mr. Ma and his wife from Pacific Mall. They also learned that Mr. Ma and his wife were arrested and charged with theft under from a Bay store. The police also obtained those video images. Detective Luff reviewed Mr. Ma’s Facebook page (as did detectives from the York Regional Police). He compared the video images from the Bay, the Pacific Mall, and P.M.C.’s condo building. He was confident that the man in all three videos was Mr. Ma. He was also confident that the woman in the videos at the Pacific Mall and The Bay was Mr. Ma’s wife.

[13] The police could not find Mr. Ma’s vehicle at 39 Sunbird Crescent. They learned, however, that his wife, Ms. Hui, had given an address of 35 Cascaden Street. The police attended on January 5, 2015. Mr. Ma was living there with Ms. Hui and their 15-day old child. They arrested Mr. Ma and executed a search warrant.

[14] Ms. Hui was packing a bag as the police secured the apartment. The police found A.M.L.’s RBC debit card in the bag. The police also seized multiple items of clothing stolen from A.M.L.’s condo, as well as her iPhone, and iPad, and a Maxi dress boutique shopping bag. The police seized Exacto knives and surgical masks. They also seized what they describe as a “rape kit”. It contained rope, knives, a surgical mask, a package of swabs, a CO2 cartridge, band-aids, and white tape. The police also seized a BB gun in a closet. It looked like a real revolver. It was similar to the handgun described by P.M.C. Finally, the police located A.M.L.’s passport in Mr. Ma’s car.

[15] Detective Luff was aware that York Regional Police were conducting an investigation in relation to a similar assault on a sex worker in York Region. He also knew that the victim’s name was A.M.L. When the Toronto police found A.M.L.’s passport and RBC debit card they contacted the York Regional Police. The York Regional Police arrived and executed their own search warrant.

[16] The police photographed Mr. Ma on arrest. One of his tattoos says “too fast to live, too young to die”. His other tattoo is of the queen of hearts with the word “memory” above and the word “true love” below. Mr. Ma has surgical scars on his abdomen.

[17] The assaults on P.M.C. and A.M.L. had several things in common, leading to the common sense conclusion that the same person committed both offences. Given the identification by both victims, it also led to the common sense conclusion that that person was Mr. Ma:

• Both sexual assaults involved tying up of the victim and stuffing an item in the victim’s mouth;

• Both sexual assaults also involved robberies. The perpetrator took several similar items: phones and bank cards, for example.

• The perpetrator stole A.M.L.’s passport and asked P.M.C. about hers.

• A.M.L. was forthright about being a sex worker. P.M.C. was less forthcoming, but it seems clear that she is also a sex worker. Both assaults, therefore, involved sex workers. Sex workers are vulnerable victims.

• The perpetrator used Exacto knives in both assaults and threatened to kill both victims.

THE BAIL HEARING AND JUSTICE OF THE PEACE’S DECISION

[18] Mr. Ma’s father and mother were proposed as sureties. They both testified. His father immigrated to Canada in 2001 and works at a supermarket. His mother immigrated to Canada in 2012. She also works at a supermarket. Their son sponsored both of them.

[19] Both parents testified that they owned a house with a considerable amount of equity in it. Both parents testified that they knew their son had a “toy” gun. Both testified about the presence of Exacto knives in the home.

[20] One focus of the Crown’s cross-examination of both parents was their relationship with their son and daughter-in-law. Neither would provide a full explanation for calling the police to remove them from the home. Both pointed to the fact that there was a significant age difference between them (he was 29, she was 20) and that she came from a different area of China with different foods. At the time of the bail hearing, however, Ms. Hui and the baby had moved in with Mr. Ma’s parents. She was still residing there at the time of the bail review before me.

[21] The justice of the peace began his reasons for judgment by reviewing the evidence. He noted the terror and brutality of the offences. He also evaluated the sureties. Although he did not reject them as suitable, he did find that they were evasive. He also found that Mr. Ma would not take direction from his parents. He found that the proposed plan was not suitable and that Mr. Ma would be detained on the secondary grounds. The justice of the peace then considered the tertiary grounds. He noted that the case is very strong and the gravity of the offences very great. He noted that releasing Mr. Ma would risk a loss of confidence in the justice system. He found that there were grounds to detain on the tertiary ground as well as the secondary ground.

ISSUES

[22] In the Supreme Court’s decision in R. v. St-Coud, 2015 SCC 27 the Court noted that there were three bases upon which a bail review judge could interfere in a decision of the justice of the peace:

• Where the justice of the peace erred in law;

• Where the decision of the justice of the peace was “clearly inappropriate”; or,

• New evidence shows that there has been a relevant and material change in circumstances.

[23] See also: R. v. A.A.C., 2015 ONCA 483 at para. 51.

[24] Mr. MacDonald, for Mr. Ma, relies on the first and third grounds. He says that the justice of the peace erred regarding the presumption of innocence and the application of the tertiary ground. He also says that there has been a material change in circumstances. Thus, there are three issues to be determined on this bail review:

(a) Did the justice of the peace make an error of law regarding the presumption of innocence?

(b) Did the justice of the peace make an error of law regarding the application of the tertiary ground?

(c) Has there been a material change in circumstances?

ANALYSIS

(a) Did the justice of the peace make an error of law regarding the presumption of innocence?

[25] Mr. MacDonald argues that the justice of the peace essentially convicted Mr. Ma during the bail hearing, thus displacing the presumption of innocence. The justice of the peace made very strong comments about the evidence. He particularly noted the horror and the “brutality demonstrated by the accused”. He noted that Mr. Ma “clearly intended to rob these women of their dignity, at least to begin with”. Mr. MacDonald argues that these comments tainted the conclusions reached by the justice of the peace.

[26] I disagree that the justice of the peace erred. There are basic principles at play in a bail hearing. One principle is that all persons charged with an offence are presumptively entitled to bail. This rule rests on the presumption of innocence, a fundamental Canadian value. The presumption of innocence applies at the bail stage: St. Cloud, para. 70; A.A.C., para. 41. That principle must be balanced with the need to ensure the attendance of accused persons, protect the public from further offences, and maintain confidence in the administration of justice.

[27] How are those principles to be applied at a bail hearing? Making a bail decision is not easy and requires balancing all the relevant legal and evidentiary factors. The justice of the peace must clearly understand that the onus is on the party seeking detention. The justice of the peace must bear in mind the strength of the Crown’s case, but must also understand that bail hearings occur at an early stage. The defence has had no meaningful opportunity to test the Crown’s case. Many a strong Crown case at the bail stage has resulted in a withdrawal or acquittal at some later stage. No particular words are required to show that the justice of the peace understands the process. No particular formula need be recited. It must be remembered that most justices of the peace are not lawyers by training, and most deliver their reasons orally at the end of the hearing. One should not expect that justices of the peace state legal principles with the same clarity and precision as the Supreme Court of Canada – although many do. All that is required is some indication that the justice of the peace appreciates and applies the principles properly.

[28] In my view, the justice of the peace properly applied these principles. First, it is apparent that he was well aware that the burden was on the Crown. He noted that it was a Crown onus situation. He also showed that he appreciated the fact that the Crown’s case was at an early, untested stage.

[29] Second, and in my respectful view, the justice of the peace was merely commenting on the strength of the Crown’s case. He did not dwell on the horror of the offences, but he took the nature of the offences into account. He was entitled to make these comments: see St-Cloud at paras. 160-162.

[30] The Crown’s case was not just strong. It appeared to be overwhelming. Mr. Ma was found in possession of the property of both victims, including A.M.L.’s passport. As the justice of the peace noted, A.M.L. gave an incredibly accurate description of her assailant, right down to tattoos and a scar that match Mr. Ma’s tattoos and scar. He had P.M.C.’s cell phone in his possession (having replaced her SIM card with his) when he was arrested. He attempted to buy items with P.M.C’s credit card. There is video of a man in a surgical mask using attempting to use A.M.L.’s debit card at an RBC location. The police found Mr. Ma in possession of a surgical mask as well as the debit card. The police seized a BB gun that was similar to the weapon described by P.M.C., as well as Exacto knives similar to those used against both victims.

[31] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 the Supreme Court of Canada at para. 40 used language similar to that used by the Justice of the peace in in this case:

Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

[32] Wagner J. quoted that passage in St-Cloud.

[33] Thus, I see no error by the justice of the peace. Noting that the Crown has a strong or even unassailable case does not displace the presumption in favour of reasonable bail; it may, however, rebut the presumption.

[34] I will have more to say about the strength of the Crown’s case in dealing with the next issue.

(b) Did the justice of the peace make an error of law regarding the application of the tertiary ground?

[35] Mr. MacDonald argues that justice of the peace applied a test not known to law on the tertiary ground. He points to last phrase (which I have underlined) in particular:

“Upon conviction for an offence as heinous as what is alleged here, it would, without doubt, draw a long custodial sentence. Having regard for all of the alleged circumstances here, in particular, the brutality demonstrated by the accused, the fact that in each case weapons were also used, clearly, there is a risk of a loss of the public confidence in our justice system. Having regard for the safeguards imposed by Parliament, the plan proposed here would still leave a reasonable person who is properly informed feeling that their confidence in the judicial system no longer embraced their beliefs.”

[36] Although the justice of the peace’s decision was worded awkwardly, I do not think that it represents an error of law. It is necessary to examine s. 515(10)(c) and St-Cloud.

[37] The St-Cloud decision dealt extensively with the issue of the proper interpretation of s. 515(10) of the Criminal Code, which I set out here for convenience:

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:

(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.

[38] The justice of the peace must balance all four factors (which are not exhaustive) in determining whether detention is necessary to maintain confidence in the administration of justice.

[39] Wagner J. noted in St-Cloud that the tertiary ground has, in the past, been interpreted too restrictively. He rejected the notion that rare or exceptional circumstances are required.

[40] The St-Cloud decision has come under fire for supposedly enlarging the basis upon which detention may be granted, and therefore increasing the number of people to whom the tertiary ground will be applied.

[41] I disagree with this criticism. Properly applied, St-Cloud should not result in more people detained in pre-trial custody. Rather, St-Cloud is best interpreted as clarifying the tertiary ground, rather than expanding its scope. St-Cloud explains why the Crown need not be required to demonstrate exceptional circumstances or “rareness” for the application of the tertiary ground. Wagner J. in St-Cloud notes that s. 515(10)(c) of the Criminal Code will rarely be applied. This, he finds, is a consequence of the application of the provision, rather than a pre-condition: St-Cloud at para. 50. In other words, the Crown is not required to show exceptional or rare circumstances in order for there to be a detention ordered on the tertiary ground. Where s. 515(1)(c) is applied correctly detention will still be rare. There is no rule of automatic detention based on the heinousness or notoriety of the crime or the strength of the Crown’s case. The Court’s comments on the horror of the crime in Hall were observations rather than pre-requisites to detention on the tertiary ground.

[42] Furthermore, the fact that the Crown’s case is strong, or even unassailable, is not enough to justify detention on the tertiary ground. The justice of the peace must balance the four factors set out in s. 515(10)(c). In fact, there may be situations where an unassailable Crown case leading to detention could undermine confidence in the administration of justice. For example, an addict drug trafficker found in possession of crack cocaine usually faces an extremely strong Crown case at the bail stage. A plan of release for such people sometimes includes admission to a drug rehabilitation program. Obviously no two cases are identical, but one might reasonably question whether denying bail to a person with a reasonable chance of righting him or herself would promote confidence in the administration of justice. The apparent strength of the Crown’s case is just one of the four factors to consider.

[43] Other judges have rejected an interpretation suggesting that the tertiary ground has been enlarged. My colleague Quigley J. recently stated in R. v. Bonito, 2015 ONSC 4928 at para. 26:

I find it ironic and counter-intuitive that St-Cloud seems to be viewed by some as a high-water mark of an "automatic detention" school of thought in egregious circumstances where it is considered that the sensibilities of reasonable members of the public would be offended if the accused were to be released. It is ironic given the emphasis of Wagner J. on a tertiary ground detention order being justified only where justified having regard to all of the relevant circumstances, and given his specific rejection of the notion that the denial of bail could ever be an automatic matter.

[44] Mr. MacDonald’s focus is on what the justice of the peace meant in describing the reasonable person standard. In St-Cloud, Wagner J. at para. 87 noted that the court must adopt the perspective of “a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.”

[45] Wagner J. went on to point out that:

This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumsta