COURT FILE NO.: CR-21-00000085-00BR

DATE: 2021-03-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AARON CAO

Counsel:

Iain Sunderland, for the Crown

Samantha Saunders, for Mr. Cao

HEARD: March 17, 2021

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON BAIL REVIEW

[1] A justice of the peace detained Mr. Cao after a bail hearing in the Ontario Court of Justice. He is charged with gun and drug offences. He has a criminal record. On March 17, 2021 I heard a bail review. I found that there was no material change in circumstances and no error by the justice of the peace. I dismissed the application with reasons to follow. What follows are my reasons.

BACKGROUND

[2] On October 26, 2020 the police arrested Mr. Cao. He was driving a grey Acura RDX. The police had a search warrant for the car. They searched the car. The car had a professionally installed hydraulic trap – in other words, a secret compartment. The police found 112.16 grams of cocaine and 14 grams of fentanyl in the secret compartment. The police had originally reported that they had seized 52.46 grams of fentanyl. Just before the bail review commenced Crown counsel indicated that the police had re-weighed the fentanyl. The fentanyl weighed less than originally reported – 14 grams

[3] In addition to the drugs, the police seized three handguns from the secret compartment:

• A Smith and Wesson .380 with 6 rounds in the magazine (which was an extended magazine) and one round chambered;
• A Glock 9mm with 10 rounds in the magazine and one round chambered;
• A Raven .25 with 4 rounds in the chamber.

[4] The police also seized 18 rounds of 9mm ammunition from the secret compartment.

[5] The police searched Mr. Cao incident to arrest. He had three rounds of ammunition and a laser sight suitable for a handgun in his knapsack.

[6] Mr. Cao has a lengthy criminal record. He accumulated most of his convictions in youth court between 2009 and 2012. As a youth he was convicted of three counts of robbery; one count of weapons dangerous; one count of fail to comply with a recognizance; assault with a weapon; break and enter with intent; forcible confinement; assault causing bodily harm; possession of a firearm; and use of a firearm in the commission of an offence.

[7] In 2017 Mr. Cao was convicted of three offences as an adult: possession of a loaded prohibited or restricted firearm; possession of a schedule 1 substance; and possession of a firearm or ammunition contrary to a prohibition order. When the police arrested Mr. Cao on this matter he was subject to two weapons prohibition orders.

[8] The plan that defence counsel at the original bail hearing presented involved three sureties pledging $40,000. Mr. Cao was to be released to three sureties: his father, Thieu Dinh Cao, his mother, Almarie Matterig, and his deceased brother’s girlfriend, Margaret Chang-Gyles (I will refer to Mr. Cao’s father by his full name, to avoid confusion). Mr. Cao was to be fitted with an ankle bracelet for electronic monitoring.

[9] Thieu Dinh Cao owns his own home. He lives there with his wife and other family members. His former wife, Ms. Matterig, rents the basement where she lived with Ms. Chang-Gyles and Ms. Chang-Gyles’s child. Mr. Cao’s brother, Andrew, was the father of Ms. Chang-Gyles’s child. Tragically, Andrew was shot and killed a few months prior to Mr. Cao’s arrest.

THE DECISION OF THE JUSTICE OF THE PEACE

[10] The justice of the peace noted that guns and drugs were found in the Acura. He also found that although it was his father’s car, Mr. Cao had used it almost exclusively during the relevant time period. He hi-lighted the fact that the police seized a significant quantity of fentanyl, possibly the most dangerous and lethal illegal drug on the market. He also noted that the onus was on Mr. Cao to show why his detention was not justified. He rejected the plan. Mr. Cao’s parents had failed to control him while he accumulated a very serious youth record. Both testified that they had tried to keep him on the straight and narrow. Notwithstanding Thieu Dinh Cao’s considerable efforts to get Mr. Cao to work with him and straighten himself out – even to the point of buying the Acura so that Mr. Cao could use it – his son was still arrested in possession, allegedly, of firearms and drugs in that very car. As the justice of the peace put it:

So it is pretty obvious to me that Mr. Cao Jr. does not respect his parents. He is not amenable to his supervision. He has disregarded their repeated exhortations to change course and avoid trouble with the law.

[11] The justice of the peace also noted that Ms. Chang Gyles was also not a suitable surety. She did not seem troubled by Mr. Cao’s failure to follow bail orders in the past. She also seemed to fail to understand that Mr. Cao required a very high degree of supervision, given his serious criminal record. The justice of the peace found ample reasons to detain Mr. Cao on both the secondary and tertiary grounds.

ANALYSIS

[12] In R. v. St. Cloud, 2015 SCC 27, at para. 121 Chief Justice Wagner set out the circumstances under which a bail review may review the initial bail decision:

It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.

[13] Ms. Saunders argued that the justice of the peace gave excessive weight to several factors and misapprehended others. She also argued that there was a material change of circumstances.

[14] As I indicated at the close of submissions, I found that there was no error of law by the justice of the peace. I also found no material change in circumstances. I will deal with each of these arguments in turn.

(a) Did the justice of the peace err in law?

[15] Ms. Saunders argued that the justice of the peace gave undue weight to Mr. Cao’s youth record. The justice of the peace discounted the fact that there was only breach on Mr. Cao’s record, and that it was 11 years old. The justice of the peace also misapprehended the evidence regarding Mr. Cao’s use of the Acura. The justice of the peace noted that Mr. Cao used the car “almost exclusively.” Ms. Saunders argues that that failed to address the evidence of Ms. Chang-Gyles. Ms. Chang-Gyles testified that others in the household used the car, including her. Finally, Ms. Saunders argued that the justice of the peace misapprehended the evidence of Ms. Chang-Gyles regarding Mr. Cao’s criminal record.

[16] Respectfully, I see no error by the justice of the peace.

[17] A bail hearing is not a trial. The presumption of innocence applies but the usual rules of admissibility are relaxed R. v. White, 2008 ABCA 294 at para. 54. Unlike at a trial, an accused person’s character is very much in issue. A bail hearing is about future conduct, not culpability for a crime that has already occurred: Gary T. Trotter, The Law of Bail in Canada (2nd Ed.) at p. 223. Past behavior is usually the best predictor of future behavior. In this case, the justice of the peace was not only concerned about one single fail to comply with recognizance conviction as a youth. The justice of the peace was rightly concerned about Mr. Cao’s disregard of court orders in general. He noted that in 2017 Mr. Cao was convicted of breaching a weapons prohibition order. As the justice of the peace put it, breach of a prohibition order is “not technically a fail to comply, but it is unquestionably a breach of a court order, and a very serious court order, namely a prohibition against weapons or ammunition.” The justice of the peace was obviously correct about that. And, of course, Mr. Cao faces fresh charges of violating a weapons prohibition. The justice of the peace’s comments about Mr. Cao’s fail to comply conviction must be seen in the light of his other convictions and current allegations.

[18] I also note that the justice of the peace considered the previous fail to comply condition in the context of the suitability of the proposed sureties. The proposed sureties – Mr. Cao’s parents – were unable to control him in the past. Nothing whatsoever in the evidence gave the justice of the peace any indication that they would be able to control him in the future.

[19] Respectfully, the justice of the peace did not misapprehend the evidence about others who may have had access to the Acura. Mr. Cao’s father testified that he purchased the car for Mr. Cao. Although he intended that it be driven all three of his sons. Mr. Cao’s father did admit that Aaron was the primary driver. Andrew Cao, unfortunately, could not have been the owner of the drugs and guns because he was deceased at the time of the search of the car, and had been for at least two months. Ms. Matterig also testified that only Mr. Cao – and occasionally Mr. Cao’s father – drove the Acura. The totality of the evidence seems clear that Mr. Cao was the primary driver. That is what the justice of the peace concluded. That conclusion was supported by the evidence. Moreover, there was a strong connection between Mr. Cao and the firearms. When Mr. Cao was arrested, he had a laser site suitable for a handgun and three rounds of ammunition in his knapsack.

[20] I also do not agree that the justice of the peace misapprehended the evidence of Ms. Chang-Gyles. Ms. Chang-Gyles testified that others drove the car. That may be so, but the weight of the evidence is that Mr. Cao drove the car regularly. The others drove it occasionally. There was no evidence before the justice of the peace other drivers in the house had criminal records involving firearms, violence, and drugs. There was also no evidence that other drivers had been arrested with ammunition or laser sights in their backpacks.

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

[21] Ms. Saunders argued that two new factors constituted a material change in circumstances: first, Mr. Cao presented a new plan of release. Three new sureties were proposed: Adrian Cao, Mr. Cao’s brother; Sara Mirzai, his brother’s girlfriend; and Stefanie Calibusto, a friend of Mr. Cao. Mr. Cao would live with his brother and girlfriend. They would pledge $40,000 (in contrast to the $30,000 pledged at the original bail hearing). Mr. Cao would wear an ankle monitor supplied by Recovery Sciences Corp.

[22] Just prior to the commencement of the bail hearing, Crown counsel informed the court and defence counsel that the police had re-evaluated the drug evidence. The Crown now alleges that Mr. Cao possessed 14 grams of fentanyl, rather than 52 grams. Ms. Saunders argued that this disclosure also constituted a material change of circumstances.

[23] Again, respectfully, I do not agree.

[24] Whether new evidence constitutes a material change of circumstances is governed by a flexible interpretation of the criteria for fresh evidence on appeal: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775; R. St. Cloud at paras. 127-129. The Palmer criteria are:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. ...
2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
3. The evidence must be credible in the sense that it is reasonably capable of belief, and
4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[25] I do not think that the first three factors are an issue.

[26] On the first of the Palmer criteria, obviously the defence (and Crown) did not know at the original bail hearing that the police would reduce the alleged amount of fentanyl in Mr. Cao’s possession. Regarding the sureties, I am aware that the three current sureties could have been presented at the original bail hearing. In my respectful view, that is a neutral factor. As Ms. Saunders rightly pointed out, it makes no sense for defence counsel to present every conceivable surety. To do so would clog up bail courts. Justices would spend more time vetting sureties then determining whether the party with the onus had met it. Courts should not be wary of new plans with new sureties. What courts should be wary of are cases where sureties who have been strategically held back at the original bail hearing and kept in reserve for a potential bail review.

[27] On the second of the Palmer criteria, the amount of fentanyl does not bear on a trial issue. The Crown will be required to prove that Mr. Cao possessed the fentanyl and that it was for the purpose of trafficking. Ms. Saunders did not suggest that 14 grams of fentanyl is an amount for personal use. Indeed, the material filed by the Crown makes it clear that 14 grams is still a substantial amount of fentanyl.

[28] The third of the Palmer criteria does not apply.

[29] I turn to the fourth Palmer factor. I do not think that the change in the amount of fentanyl is material. I do not think it would have affected the outcome at the bail hearing. I am very confident that had the Crown’s case at the bail hearing consisted of three handguns, 113 grams of cocaine, a laser site and ammunition in a backpack, two previous weapons prohibition orders, and no fentanyl at all the justice of the peace would still have detained Mr. Cao on the tertiary ground.

[30] In R. v. Ferguson, [2002] O.J. No. 1969, [2002] O.T.C. 348, 2002 CarswellOnt 1623, Hill J. described the practice of “reshuffling the deck”, in a much-used phrase. The phrase refers to simply presenting the same plan of release but with different sureties. Such a plan does not constitute a material change of circumstances. It is worthy setting out Hill J.’s entire quote (at para 17):

As to the first point, the advancement of fresh prospective sureties in a bail review, I would think that this approach to support an argument of unjustified detention is generally destined to fail. Simply reshuffling the deck of prospective sureties to draw out new ones, or a greater number, does not in itself amount to a material change in circumstances. Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.

[31] In my respectful view, the new plan does not call into question the continued validity of the reasons for detention. The tertiary ground continues to apply with full force. An accused person can meet their onus on the tertiary ground with a new and better plan: R. v. Dang, 2015 ONSC 4254, 21 C.R. (7th) 85 at para. 58. That said, I adopt the comment of my colleague Quigley J. in R. v. Hassan, 2015 ONSC 4535 at para. 29:

There is no release plan that is perfect. It is not about the perfection of the release plan, because no doubt some might argue that the perfect release plan is one that effectively amounts to incarceration, and that is not what judicial interim release is intended to be. But whether to grant release will never be about the perfection of the release plan, but rather about the courts' ability to have confidence that the accused can be trusted to abide by the plan at all times, whether within eyesight of his sureties or not, and whether supervised or not.

[32] I am simply unable to accept that the new plan represents something that could control Mr. Cao any better than a plan featuring his parents. I am not suggesting that no plan would suffice. This plan, however, is basically the same plan presented at the original bail hearing but with different sureties or are neither stronger nor weaker. The new plan does not call into question the continued validity of the reasons for detention.

Released: March 23, 2021

COURT FILE NO.: CR-21-00000085-00BR

DATE: 2021-03-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AARON CAO

REASONS FOR JUDGMENT ON BAIL REVIEW

R.F. Goldstein J.