COURT FILE NO.: CR-18-0001-BR
DATE: 2018-03-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MARCUS CHAC-WAI
Applicant
Counsel: Kevin Matthews, for the Crown Nicole Rozier, for the Applicant
HEARD: January 4, 2018, at Thunder Bay, Ontario
Madam Justice B. R. Warkentin, R.S.J.
Reasons On Bail Review
[1] The applicant, Marcus Chac-Wei, seeks his release from custody pending his trial pursuant to s. 520(1) of the Criminal Code of Canada. The Crown opposes release.
[2] On November 17, 2017 after a show cause hearing, Justice of the Peace, B. Leaman determined that the applicant should not be released pending trial. The Justice of the Peace (“Justice”) found that the detention of the applicant was justified on each of the primary, secondary and tertiary grounds as set out in s. 515(10) of the Criminal Code.
[3] The applicant is charged in Ontario with five counts on two separate Informations with:
a) Uttering threats to cause death contrary to s. 264.1(1)(a) of the Code;
b) Kidnapping with intent to confine contrary to s. 279(1.1)(b) of the Code;
c) Trafficking a schedule 1 substance contrary to s. 5(1) of the Controlled Drugs and Substances Act;
d) Conspiracy to commit an indictable offence, to wit, trafficking cocaine contrary to s. 465(1)(c) of the Code; and
e) Conspiracy to commit an indictable offence, to wit, trafficking methamphetamine contrary to s. 465(1)(c) of the Code.
[4] Prior to being charged with these offences in Ontario, the applicant was charged in Manitoba with kidnapping and assault causing bodily harm. The applicant was released on a recognizance in Manitoba; however, because of the Ontario charges he was transported to Thunder Bay pursuant to a warrant for his arrest for the offences set out above in this jurisdiction.
[5] On December 20, 2017, after the show cause hearing before the Justice in Thunder Bay, the applicant was charged with three additional criminal offences namely: assault, assault with a weapon and breach of a lawful order. These charges stem from allegations made by a fellow inmate in the Thunder Bay District Jail.
[6] Counsel for the applicant has alleged that the Justice failed to properly consider and apply the law, standards of proof and onus when he determined that the applicant should not be released. The details of these alleged errors were not set out in the Notice of Application and the applicant did not file a factum in this hearing.
[7] From the submissions of counsel for the applicant, the alleged errors made by the Justice are the following:
a) The Justice erred by finding that the onus was on the applicant to demonstrate why he should be released when in fact there was a mixed onus on both the Crown and the applicant. The onus was on the Crown to justify detention with respect to the kidnapping and assault charges. The onus was on the applicant to justify release with respect to the drug trafficking and conspiracy related charges;
b) The Justice erred when he found that the applicant committed these offences while on bail from charges incurred in Manitoba. This was conceded by the Crown to be an error because the applicant was not released from custody in Manitoba but instead transferred to Thunder Bay on a warrant in this jurisdiction, therefore the applicant could not have committed the breach that the Justice relied upon in his reasons; and,
c) The Justice placed too much emphasis on the applicant’s criminal record when that record was outdated; stemming from convictions in 1994.
[8] Counsel for the applicant also submitted that the Justice failed to provide sufficient reasons for reaching his decision and instead relied upon the statements of the police officers and others and the Crown submissions and that the decision to deny release was inappropriate and justifies this Court’s intervention.
[9] The applicant has not argued a material change in circumstances. He has proposed the same sureties with the same plan for release as was placed before the Justice with one additional proposed surety who is prepared to post the sum of $20,000.00.
Facts as alleged by the Crown:
[10] The applicant is alleged to have organized a sophisticated cocaine trafficking conspiracy between the Greater Toronto Area (“GTA”) and Thunder Bay, Ontario over an approximate three-year period.
[11] The allegations are that the applicant had a number of operatives who would, under the applicant’s direction, conceal cocaine in vehicles in the GTA and then drive to Thunder Bay where the cocaine was sold. The sale proceeds of the cocaine were then either deposited into bank accounts that flowed back to the applicant through his various companies or were driven back to the GTA, and provided to the applicant.
[12] The Crown alleges that the applicant conspired to traffic in methamphetamine in the same fashion and that he used violence to enforce compliance from his operatives by kidnapping and threatening them with harm.
Analysis and Decision
[13] For the reasons that follow, I agree with the Crown that the applicant has failed to show the Justice erred in law or that the decision to deny release was inappropriate and justifies this Court’s intervention. There has been no material change in circumstance that would justify a review of the interim detention order.
[14] I also disagree with counsel for the applicant that the reasons provided by the Justice were insufficient. The original show cause hearing took place over the course of two days. The Justice rendered a decision that was delivered orally over 23 pages of the transcript at the conclusion of the show cause hearing. The Justice took time to set out the basis for his decision to detain the applicant under all three grounds.
[15] While the Justice made a factual error regarding an alleged breach of the Manitoba recognizance, this error is minor and from my review of the evidence in the first hearing and the decision of the Justice, it was only one of a number of factors justifying detention under the secondary ground.
[16] The Justice commented on the fact that the applicant’s criminal record was relatively brief and dated. Again this was only one of several factors the Justice considered when justifying the applicant’s detention on the secondary grounds.
[17] Even if these errors were sufficient to find that the detention was not justified under the secondary ground, which I do not accept, the Justice also found that the applicant should be detained on both the primary and tertiary grounds. In other words, the Justice had other bases besides the secondary ground on which to detain the applicant.
[18] Finally, I do not find that the Justice erred when he found that the onus was on the applicant to show cause why he should be released. Section 515(6)(d) of the Code provides that the onus is on an accused person to show why his detention is not justified when there are charges relating to drug trafficking and criminal conspiracy. It is clear from the reasons provided by the Justice that for each of the three grounds it was the drug trafficking and conspiracy to traffic that guided his decision to detain the applicant.
[19] Because I have determined that the Justice did not err in law and that his decision was not unreasonable, it is not open for me as the reviewing judge to interfere with the Justice’s decision to detain the applicant.
“original signed by”
Madam Justice B. R. Warkentin, R.S.J.
Released: March 8, 2018
COURT FILE NO.: CR-18-0001-BR
DATE: 2018-03-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
MARCUS CHAC-WAI
Applicant
REASONS ON BAIL REVIEW
B. Warkentin R.S.J.
Released: March 8, 2018