



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2021 ONCA 19

DATE: 20210108

DOCKET: M51380 (C68086)

Thorburn
    J.A. (Motions Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Kevin
    Tran

Applicant (Appellant)

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. Trans 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. Trans co-accuseds 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. Trans 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. Nguyens
    girlfriend, who had been a co‑accused but against whom the charges were
    stayed, also posted a significant sum in support of Mr. Nguyens 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 individuals 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 individuals interest in any given
    case.:
Oland
, at para. 45.

[27]

In weighing the enforceability and reviewability
    interests, I conclude that the applicants 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.


