R. v. Vu, 2011 ABQB 27

Court of Queen ’ s Bench of Alberta Citation: R. v. Vu, 2011 ABQB 27 Date: 20110119 Docket: 100171412U1 Registry: Edmonton Between: Her Majesty the Queen - and - Andrew Vu Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and this memorandum of decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial notice: The restriction on publication ended on March 4, 2011. _______________________________________________________ Reasons for Judgment of the

Honourable Madam Justice L.J. Smith _______________________________________________________ [1] Mr. Vu applies for review of a previous review denying judicial interim release. [2] Mr. Vu is charged with conspiracy to traffic in cocaine, methamphetamine, ecstacy, and weapons. He is also charged withrelated possession and trafficking charges. His weapons charges related to 13 guns and ammunition. [3] Mr. Vu was denied bail on the second and tertiary ground by Her Honor Judge Valgardson on February 26, 2010. [4] Mr. Vu’s bail review was denied by the Honorable Mr.

Justice Burrows on May 11, 2010 on the second ground. [5] Since the denial of bail review, Mr. Vu maintains certain things have changed. They are: 1. Disclosure has shown that a surveillance camera placed in the hallway of an apartment building was placed without judicialauthorization. There will, therefore, be a Charter application made on Mr. Vu’s behalf. 2. Disclosure has shown that fingerprints and documents found in the apartment do not belong to Mr. Vu. The firearms were locatedin a bedroom. A number of people were seen entering and leaving the apartment. Although Mr.

Vu was one of those people, nothing tieshim to the bedroom. 3. Mr. Vu’s proposal for release is more robust than it was at the last bail review. There are a number of differences. The mostnotable which speak to the second and tertiary grounds are a $200,000 surety offered by Mr. Vu’s parents and a job and home offered byhis sister. [6] The Crown argues that the above changes fail to amount to a material change as is needed to satisfy the test in Lysyk (R. v.Lysyk (2003) 2003 ABQB 256 , A.J. 447 (Alta. QB)). No error of law is alleged.

Accordingly, the review should be denied. [7] The defence argues that the law is not clear as to what test ought to be applied on a bail review. It is suggested that amodified Lysyk test should prevail which would allow for a review based upon significant changes such as those put forward. [8] In my view, the circumstances of the bail review inform the test to be applied. Where a Queen’s Bench justice is reviewing adenial by a justice of the peace where an accused was without counsel, the Lysyk test might be relaxed and on some occasions thehearing may go some distance towards a hearing de novo.

A reviewing justice must always be cognizant of the greater frequency withwhich justices of the peace and provincial court judges deal with bail and accord appropriate deference. Where, as here, the review is ofthe considered opinion of a justice of this court on a prior review and there is no recourse to the Court of Appeal, the Lysyk test ought tobe applied with more rigor. [9] Here, the accused has no record. In the prior two hearings denial was not premised upon the primary grounds. [10] The trial is set for June of 2011. The preliminary inquiry was waived.

[ 11 ] The changes, while perhaps falling somewhat short of ‘material’ for reasons which follow, appear to be significant. In all of the circumstances I am disinclined to preclude the accused from a review. [ 12 ] The onus is reversed. [ 13 ] After installing the surveillance camera in the eighth floor hallway of the Liberty building apartments, Mr. Vu was seen entering and leaving suite 802, 21times using a key. That key was later found in his bedroom at his own home. [ 14 ] Mr.

Vu was seen to enter and leave suite 802, carrying bags and large containers, remaining for short periods, and was the second to last person to enter and leave the apartment. [ 15 ] A general warrant was executed at suite 802. It was sparsely furnished and contained no personal effects. It appeared to be used strictly for the purposes of storing, processing, packaging of illegal drugs and storage of firearms. [ 16 ] Found in it were a money counter, score sheets supporting trafficking back to January of 2009 of cocaine, methamphetamine, ecstacy and one AK-47 assault rifle. $27,500 was found in the stove drawer.

Four bulletproof vests hung in the bedroom closet in plain view. In that same closet was a large hockey bag containing guns and two further boxes of guns and ammunition. Nothing else was in the closet. Paraphernalia for packaging, weighing and production of drugs was seen which suggested dealing in large quantities of cocaine. [ 17 ] Activity recorded by the surveillance camera suggested Mr. Vu was intimately and actively involved with the business being conducted in the suite. A subsequent search warrant of his home produced more large sums of money, drugs and containers appearing to be those seen removed by Mr.

Vu from suite 802. [ 18 ] The evidence reveals that the business being conducted from suite 802 was sophisticated, commercial, highly lucrative, defended by life threatening measures and involved dissemination of weapons in addition to drugs. At least two of the drugs are addictive. Eventually it was confirmed that 7.5 kilograms of methamphetamine, 40 kilograms of cocaine and over 500 ecstacy pills were seized from the apartment. The 13 firearms seized included automatic weapons and some were handguns. None were legally owned or of the sort used for hunting game. [ 19 ] Further, the evidence reveals that Mr.

Vu was at least the top manager of the business, as a custodian of the key, if not the director of it. Clearly he was a trusted, well entrenched, high end drug dealer. [ 20 ] Mr. Vu’s co-accused, Mr. Legate has been released on bail by consent. Mr. Legate’s criminal record would raise issues on the primary and secondary grounds. I do not know what proposal was put forth on Mr. Legate’s behalf. However, it is clear from the submissions that Mr. Legate’s role in the offences before the court is much diminished compared to that of Mr. Vu. [ 21 ] Surveillance puts Mr.

Legate into the suite only one time and by inference only two or three more times. However, Mr. Legate’s fingerprint was found on the washing machine. While he was involved, the evidence thus far supports involvement at a much lower level than that of Mr. Vu. [ 22 ] Others were also involved with Mr. Vu and at the Liberty building on the 9 th floor but they cannot be found. It is suggested due to surveillance of the 9 th floor of the Liberty building and inferences made from it, as well as fingerprints and documents found in suite 802, that Mr. Vu’s twin brother, Martin Vu, was involved.

He however cannot be found and it is suggested he may be in Vietnam. [ 23 ] The Vu’s grandparents live in Vietnam. [ 24 ] Nevertheless, it cannot be said that detention of Mr. Vu is required on the primary ground. His immediate family lives in

Edmonton, he has ties to this community and he turned himself in after he was released on a first round of charges. [25] The question for this review is whether Mr. Vu has raised a change in circumstances to satisfy concerns on the secondary andtertiary grounds. I will first deal with the second ground. [26] The defence argues that but for the strong case and the finding of the weapons and ammunition, Mr. Justice Burrows wouldnot have detained Mr. Vu on the secondary ground. At paragraph 21 it appears my brother justice was concerned about Mr. Vu’s lack ofregard of the rule of law or the sanctity of life.

The release proposal then submitted failed to address that concern. [27] The first question is whether the case is weak now that there is a Charter argument. The substance of that argument was notaddressed by the defence. It was addressed by the Crown. The essence of the argument is that where Mr. Vu cannot claim a reasonableexpectation of privacy, as he cannot in the public hallway of an apartment building, he cannot maintain a Charter breach. R. v.

Nguyen,2008 ABQB 721 is cited for support. [28] Without predetermining the issue, as I cannot without hearing all of the relevant evidence, it is my view that at this stage ofthe proceedings the argument appears weak. [29] Next, is the allegation that Mr. Vu cannot be tied to the bedroom where the weapons, ammunition and bullet proof vests werefound. It was his twin brother’s documents and fingerprints which were found in the bedroom. It is suggested that an inference should bethat Martin Vu was somehow in possession or control of the bedroom, not Mr.

Vu. [30] The submissions of the Crown, backed up by photographs, are that the weapons and related items were in plain view in thecloset; essentially impossible to miss. Gun butts emerged from the hockey bag. Vests hung openly. Nothing but guns, ammunition andvests were in the closet. The bedroom was close to the laundry space. [31] It is argued that given the nature of the operation and Mr. Vu’s position in it, the irresistible inference is that he knew of thepresence of the weapon’s and related effects.

In all of the circumstances I agree. [32] Therefore, the Crown’s case is still a strong one. [33] Next, is the question of whether Mr. Vu’s new release proposal is sufficient to address the public safety concern of thesecondary ground. [34] As set out by Chief Justice Lamer in R. v. Morales (1992), (SCC), 77 C. C. C. (3d) 91 (S.C.C.): Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while onbail.

Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration ofjustice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justifiedonly when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous. [35] I note that the proposal for release before Mr. Justice Burrows (para. 20) included substantial cash and quality sureties. Mr.Vu’s new proposal for release is more specific than the previous one. However, Mr.

Vu has had to invest little in creating it. Rather, hisfamily has offered to put much on the line to help him. This may prove they have faith in him. [36] It is significant, but not new, that Mr. Vu turned himself in on these charges. It is significant that he, if convicted, is facing along jail sentence.

[ 37 ] In my view, Mr. Vu’s lack of criminal record is outweighed by his lack of regard for the rule of law and the sanctity of life which can be inferred from his involvement with the matters before the court. [ 38 ] The demonstrated lack of regard for the rule of law and sanctity of life raise a question of his motive to be law abiding. [ 39 ] In the context of the drug operation before the court the quantum of the parents’ surety is not large. A return to the lucrative business of drug dealing could quickly address a loss of $200,000. [ 40 ] It appears from the evidence that Mr.

Vu’s brother has a connection to the drug operation. It is significant that Martin Vu is not to be found. It is significant that the Vu family appears to be a close knit one, ready and willing to support wayward sons. [ 41 ] It appears from the evidence that a fairly constant companion of Mr. Vu’s at suite 802, Emerson Huynh, is connected to the drug operation. Mr. Huynh is not to be found. [ 42 ] I infer that at least two central figures in the drug operation have eluded the police and therefore are somewhat free and would be available to Mr.

Vu if he were released. [ 43 ] These circumstances are relevant to the question put in Morales . The length, sophistication and lucrative nature of this operation, backed up as it was by automatic weapons, ammunition and bullet proof vests speaks to a level of investment, control, risk and involvement that will not be easy for Mr. Vu to vacate, particularly with associates free to continue business. [ 44 ] In all of the circumstances, some of which are found in the reasons of Judge Valgardson and Justice Burrows and are not further set out here, I am of the view that Mr.

Vu has failed in his onus to establish that his release is justified on the secondary ground. [ 45 ] I am satisfied his detention is required and justifiable due to there being a substantial likelihood that he will offend or interfere with the administration of justice in such a way to endanger the protection and safety of the public. [ 46 ] Since this matter has been determined on the second ground, I will not address the tertiary ground. [ 47 ] Application dismissed. Heard on the 14 th day of January 2011. Dated at the City of Edmonton, Alberta this 19 th day of January 2011.

L.J. Smith J.C.Q.B.A. Appearances: Greg Rice Justice Canada for the Crown Robert H. Davidson Davidson Gregory Danyluik Stuffco for the Accused