R. v. Le (T.D.), 2006 MBCA 68

• Judge: Huband, Hamilton and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 15, 2006
• Jurisdiction: Manitoba
• Citations: 2006 MBCA 68;(2006), 205 Man.R.(2d) 41 (CA)

R. v. Le (T.D.) (2006), 205 Man.R.(2d) 41 (CA);

    375 W.A.C. 41

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JL.016

Her Majesty The Queen (respondent/applicant) v. Tam Dong Le (accused/applicant/respondent)

(AR 06-30-06349; 2006 MBCA 68)

Indexed As: R. v. Le (T.D.)

Manitoba Court of Appeal

Huband, Hamilton and Freedman, JJ.A.

June 28, 2006.

Summary:

An accused who was charged with first degree murder was granted interim release. The interim release order was cancelled the next day for an alleged breach of the release conditions. The accused sought a direction for review of the order cancelling his interim release under s. 680 of the Criminal Code. The Crown sought a review of the order that granted the accused's interim release.

The Manitoba Court of Appeal, per Twaddle, J.A., in a decision reported at 205 Man.R.(2d) 39; 375 W.A.C. 39, directed the court to review both the interim release order and its cancellation.

The Manitoba Court of Appeal set aside the order cancelling the accused's interim release and vacated the interim release order.

Editor's note: for a related decision involving the same parties, see (2006), 204 Man.R.(2d) 13.

Criminal Law - Topic 3301

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Detention necessary for protection of public (i.e., secondary ground) - Le was charged with first degree murder - He was granted interim release - The Crown applied under s. 680 of the Criminal Code for review, submitting, inter alia, that the judge had not sufficiently identified the risk to the public - The Manitoba Court of Appeal allowed the application and vacated the release order - The judge did not mention that the shooting that led to the charge occurred in a public place with many people present - This had to be included in a danger assessment - The judge did not mention that when Le was charged with murder, he was (i) on parole for break, enter and theft and possession of cocaine, (ii) bound by a recognizance and (iii) bound by a weapons prohibition order - The judge did not comment on the bail plan or that it was essentially identical to the earlier recognizance - These factors were essential considerations - The failure to refer to them decreased the "due regard" to be given to the judge's decision - See paragraphs 16 to 38.

Criminal Law - Topic 3307.1

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Release - Conditions - Breach of - Le was charged with first degree murder - He was granted interim release - The order allowed Le to be away from his home address only when working or travelling to or from work - He was arrested the next day for breaching that condition when police saw him stopping on his way home from work - The Crown successfully applied for revocation of the release - Le applied under s. 680 of the Criminal Code for review of the revocation - Le submitted that he had only stopped to purchase motor vehicle insurance, that the purpose of the stop was legitimate and that the diversion from his homeward path was minuscule - The Manitoba Court of Appeal allowed the application and set aside the revocation order - The circumstances of the breach did not justify the finding that Le needed to be detained when a few days earlier he had satisfied the onus on him to be released - See paragraphs 10 to 15.

Criminal Law - Topic 3315

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Evidence and burden of proof - Le was charged with first degree murder - The judge who granted Le interim release indicated that he was "satisfied on a balance of probabilities that a likelihood of [Le] committing another crime" was not substantial, although the likelihood did exist - The Crown applied under s. 680 of the Criminal Code for review, submitting, inter alia, that the judge had erroneously applied the balance of probabilities onus to the "substantial likelihood" consideration because "substantial likelihood" was only one factor to be considered - The Manitoba Court of Appeal allowed the application and vacated the release order - The manner in which the judge approached the analysis appeared to have confused the onus analysis - The onus was on Le to demonstrate on a balance of probabilities why his detention was not necessary for the public's protection - This required a consideration of all the circumstances including any substantial likelihood that Le would commit a criminal offence if released - See paragraphs 27 to 29.

Criminal Law - Topic 3319

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Vacating, cancelling or varying interim release order - [See Criminal Law - Topic 3301 and Criminal Law - Topic 3315 ].

Criminal Law - Topic 3320

Compelling appearance, detention and release - Interim release or detention of accused pending trial or appeal - Review - Le was charged with first degree murder - He was granted interim release but it was cancelled the next day for an alleged breach of conditions - Le applied for review of the revocation order under s. 680 of the Criminal Code - The Crown applied for review of the release order - Regarding the standard of review, the Manitoba Court of Appeal indicated that the law did not demand that the reviewing court defer to the judge of first instance - Rather, the standard allowed the court to substitute its own discretion for that of the judge of first instance after giving "due regard" to the decision of that judge - See paragraphs 5 to 9.

Cases Noticed:

R. v. Carrier (1979), 2 Man.R.(2d) 168 (C.A.), refd to. [para. 6].

R. v. Hill, [1973] 5 W.W.R. 382 (B.C.S.C.), refd to. [para. 6].

R. v. White (2005), 202 C.C.C.(3d) 295; 2005 ABCA 403, refd to. [para. 7].

R. v. Siemens (1991), 70 Man.R.(2d) 319 (C.A.), refd to. [para. 8].

R. v. Rondeau (1996), 108 C.C.C.(3d) 474 (Que. C.A.), refd to. [para. 22].

R. v. Wu (B.Q.) (1998), 117 B.C.A.C. 305; 191 W.A.C. 305 (C.A.), refd to. [para. 23].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161, refd to. [para. 30].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 30].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 515(10) [para. 18].

Counsel:

A.G. Bowering and R.S. Dhillon, for the Crown;

M.D. Glazer, for the accused.

These applications were heard on May 15, 2006, by Huband, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following judgment for the court on June 28, 2006.