Supreme Court

R. v. Wong and R. v. Mak, 2005 NWTSC 91
        Date: 20051110
      Docket: S-1-CR-2005000096

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:

HER MAJESTY THE QUEEN

- vs. -

KAN SIU (KEN) WONG

     Docket: S-1-CR-2005000097


HER MAJESTY THE QUEEN

- VS -

LARRY MAK

Transcript of the Decision following a Review of Bail by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on November 10th A.D., 2005.

APPEARANCES:

Ms. S. Tkatch:  Counsel for the Crown
Mr. R. Davidson: Counsel for the Accused Wong
    Counsel for the Accused Mak


 THE COURT:             I am going to address some common issues relating to both of these review applications but I want to emphasize that I have considered each of them on the basis of their individual merits.
          I also want to say that I am not going to discuss the standard of review. I made my views known in the Poitras case and nothing has caused me to change or modify those views.             As a general comment, I recognize that there is an overarching constitutional right to  reasonable bail for everyone charged with a crime.  Because of the type of charges these two accused are facing, however, Parliament has decreed that it is the accused who must show  cause why detention is not justified.  The reasons for that were set out by the majority in the Supreme Court of Canada case of Pearson wherein it was recognized that serious narcotics offences create specific difficulties for the bail process. In particular, there are heightened concerns about accused persons absconding rather than facing trials and with respect to continuing criminal activity.  As noted in Pearson, narcotics trafficking is a business and a highly lucrative one thereby providing the means to flee and the incentive to
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continue criminal behaviour.
          But as another general comment I recognize that, notwithstanding the question of
who has the onus to show cause, the operative principle is still the same. Bail cannot be denied
unless at least one of the three criteria for detention,  set out in Section 515(10) of the Criminal
 Code, is satisfied.
         Both of these men face multiple charges relating to allegedly large organized drug
trafficking operations. They are said to be major players in these operations. Mr. Wong faces five
charges of conspiracy to traffic.  Mr. Mak faces three charges of trafficking, possession for the
purpose of trafficking, and conspiracy. They are charged along with others. Significant quantities
of drugs and other related items were seized. In Mr. Mak's case, drugs and weapons were seized
at his residence. Much of the Crown's evidence comes from wiretaps and other surveillance
techniques.
          There is also an interconnection between these two men in that Mr. Wong is the
owner of a business, the Right Spot bar, that is alleged to be a spot for drug trafficking, and Mr.
Mak is the manager of that bar. Drugs were found on the bar premises (6.9 pounds of cocaine I
was told).
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          So these are the common elements with respect to these applications. And I
emphasize that these are allegations. The presumption of innocence still applies to these two
men.
          The three criteria for detention set out in the Criminal Code are:
 1. Detention is necessary to ensure attendance at Court.
 2. There is a substantial likelihood that, if released, the accused will commit further crimes.
 3. Detention is necessary to maintain confidence in the administration of justice.
         Counsel for the accused went to particular  effort to discuss the tertiary ground since,
in both cases, that was one of the reasons for detention noted in the original show cause hearings.
My view is that the tertiary ground should be resorted to rarely. It is not to be used as a
convenient catch-all when the other two grounds cannot be justified. It is to be employed only
where there is an informed reasonable perception that it is necessary to deny bail in order to
maintain the community's confidence in the justice system. That is to be judicially
determined through an objective assessment of all
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of the circumstances, including the strength of the Crown's case, the gravity of the offence, the
circumstances surrounding the offence, and the potential for a lengthy term of imprisonment.
          In these cases I do not discount the difficulties inherent in a prosecution of conspiracy
charges based to a large extent on wiretap evidence. Convictions are certainly not a certainty.
But, as Crown counsel noted, there is in both of these cases a substantial volume of
evidence incriminating these men. The gravity of the offences and the potential for lengthy
prison terms are self-evident. The alleged circumstances of the offences reveal a widespread
criminal operation.
          But, in my view, there is another aspect to the totality of the circumstances that must be
 considered with respect to the tertiary ground.  The inquiry into the public's perception of the
justice system is by necessity contextual. It is a matter of public record that the community of
Yellowknife has a widespread problem with drug trafficking and all the secondary criminal
activity that comes along with it. It is a problem that affects all corners and levels of this
community and it has been going on and getting increasingly worse for several years.
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Cases of murder and other violence related to the drug trade have been in our courts. All of this
may be quite routine in a large metropolitan area but in a relatively small community such as
Yellowknife, it would not take much effort to realize that even the most fair-minded, objective,
reasonably informed citizen of this community would be hard-pressed to maintain confidence
in the administration of justice should allegedly big-time drug traffickers be released back into
the community no matter how strict the conditions were.
          Turning now to these cases individually, I will deal with Mr. Wong first.
          In the Court below, the learned Territorial Court Judge justified detention primarily on the
tertiary ground. She expressed “some concerns” about the primary ground; greater “concerns” on
the secondary ground; but the most significant concern was on the tertiary ground. While I may
differ in the analysis of each of these grounds, and while I may place the emphasis differently, I
cannot say that the learned Territorial Court Judge made an error in principle.
          I recognize Mr. Wong's personal circumstances. He is 56 years old and has substantial
commercial ties (at least) to this
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community.  He has no criminal record. And I  recognize his willingness to post substantial
security and to abide by strict conditions.
          My main concern, however, is with respect to  the primary ground. There was evidence placed before the Territorial Court Judge that the  accused, allegedly, has contacts outside of the country and was making plans to leave Canada. I  was informed that he has substantial assets at his disposal. Therefore I am satisfied that,  even if he deposits his passport or other travel documents, there is a realistic risk of this  accused absconding from the jurisdiction of this  Court. He has no family to hold him here, only  business interests. Therefore detention is justified on the primary ground.
          In addition, considering the fact that there  are a large number of people associated with the
alleged conspiracies, I think it is reasonable to conclude that there is a realistic risk of further
offences by interfering with the orderly course of justice in this case.
          Finally, for the reasons expressed previously, this is, in my opinion, one of those cases
where the public's perception of the justice system requires detention.
           Therefore, Mr. Wong's application for bail
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is denied. He will be detained in custody.
          Mr. Mak's case requires some different analysis. Although there is no transcript of the
 Justice of the Peace's decision, counsel agree  that the  thrust of it was that the secondary ground
was satisfied, because of this accused's previous record, as well as the tertiary ground.
          Mr. Mak is 38 years old. He has substantial connections to this community since he has a
wife and child. The significant difference is that he has a related criminal record. Between 1987
and 1999 he was convicted of seven offences, five of which were drug-related and three of those
being for trafficking. The last of those, in 1999,  resulted in a penitentiary sentence. But, defence
counsel quite rightly asks, should this record be the determining factor?  Of course it should not.
But it is a highly significant factor.
           If, as counsel agreed, the Justice of the Peace purportedly detained this accused on the
secondary and tertiary grounds, then, based on my review of all of the circumstances, I cannot
say that he erred in principle.
           The primary ground may not be as much of a concern in this case but the other grounds
are.  His record does at least raise the substantial
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likelihood of the commission of further offences. His record reveals a long-standing pattern of
behaviour. I will not go so far as to label him a “career trafficker” (as Crown Counsel did) but
the fact that drugs, weapons and ammunition were found at his residence strongly suggests that
he is not adverse to putting even his own family at risk. And I want to emphasize that I did
consider the letters of reference, the letters of support filed on behalf of both of these accused.
And while, in Mr. Mak's case in particular, those letters make reference to his being a loving and
caring parent and husband, which I have no reason to doubt, those factors in my opinion do not
alleviate the concerns that I have already expressed. In many ways the fact that these items were
allegedly seized at his residence may belie some of those perceptions. If all of this  is the case,
then what assurance is there that  even restrictive conditions would prevent the commission of
further crimes?  In my opinion, there are none.
           Finally, considering all of the alleged circumstances relating to the charges against Mr.
Mak, and his record, I think the reasonably fair-minded member of the community would have
his or her confidence in the justice system
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 sorely tested by any order of release.
         Therefore, Mr. Mak's application for bail is  denied. He will be detained in custody.
          Is there anything else, counsel?
 MR.DAVIDSON:   No, Your Honour, thank you.
 MS. TKATCH:   Your Honour, I will just ask for a Form 19 warrant on each of these   gentlemen to appear in Territorial Court on November 29th at 9:30.
          Just to advise, Your Honour, we were in Territorial Court this morning. They set that date but the Form 19 was to 10 o'clock in Supreme Court so I am just asking to go back into Territorial Court November 29th.
 THE COURT:   Very well, the clerk will issue the appropriate warrants.
MS. TKATCH:   Thank you, Your Honour.
 THE COURT:   Thank you, counsel, we are adjourned.

 Certified to be a true and  accurate transcript pursuant to Rules 723 and 724 of the  Supreme Court Rules,

 Lois Hewitt, CSR(A), RPR, CRR
 Court Reporter
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