R. v. Nguyen, 2023 BCSC 2316

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nguyen, 2023 BCSC 2316 Date: 20231127 Docket: 82747-1 Registry: New Westminster Rex v. Tyrel Hieu George Mahoney Nguyen also known as Tyrel Quesnelle Publication Restriction: Pursuant to ss. 486.5(1) and 486.5(9) of the Criminal Code , and inherent jurisdiction of the Court, a publication ban has been imposed prohibiting any information that could identify the witness. Before: The Honourable Justice Gropper Oral Reasons for Judgment Counsel for the Crown: J. Bellows, K.C. A. Willms C. Fleischhaker Counsel for the Accused: M. Klein, K.C.

Place and Dates of Trial: Vancouver, B.C. October 3-5, 11-13, 17-20, 2022, October 24-27 & 31, 2022, November 1-2 & 30, 2022, January 11, 2023, July 10-11, 13-14, 18-21, 2023, August 2-3 & 9, 2023 Place and Date of Judgment: Vancouver, B.C. November 27, 2023 Table of Contents Introduction .. 5 Criminal Code Provisions .. 6 Murder 6 Attempted Murder 7 Planned and Deliberate .. 7 Randeep Kang, Gary Kang and Camilo Alonso Investigation .. 8 Vehicles . 8 Murdoch Videos . 9

Shooting at Alpen Place . 9 Evidence of Bullets and Casings . 13 Placement of Shell Casings at Alpen Place . 13 Medical Evidence . 14 Departure from Vancouver 15 Music Video . 15 “Hop out the whip” 15 “I heard there was a tag” 16 Jagvir Malhi Murder Investigation .. 16 Vehicles . 16 Before the Shooting . 16 The Shooting . 19 Evidence Found at the Scene . 20 Evidence Found in the Acura TL . 20 Damage to the Vehicles . 22 Medical Evidence . 22 Tracking the World . 23 Video Compilation .. 25 Deshawn’s White Mazda . 26 CCTV footage in Abbotsford and Surrey . 26 Deshawn’s White Mazda Returns to 68 Smithe Street 28 Comparison of Vehicles . 28 A.B.

Becomes a Police Agent .. 29 Undercover Operation .. 33 Review of Pertinent STIMS and Whiteboard Conversations .. 35 Scenario 5 (December 6, 2019) 35 STIM .. 35 Scenario 7 (December 8, 2019) 38 STIM .. 38 Sequence 1 . 38 Sequence 2 . 39 Sequence 3 . 39 Sequence 4 . 39 Sequence 6 . 41 Scenario 8 (December 9, 2019) 41 STIM .. 41 Sequence 1 . 43 Sequence 2 . 44

Sequence 3 . 45 Sequence 4 . 45 Sequence 5 . 45 Sequence 6 . 45 Scenario 10 (December 16, 2019) 46 STIM .. 46 Sequence 1 . 47 Sequence 2 . 48 Sequence 3 . 49 The Arrest .. 49 A.B.’s Evidence .. 50 Criminal History . 50 Kang Murder 54 Malhi Murder 60 Analysis of A.B.’s Evidence .. 64 Vetrovec Witnesses . 64 Credibility and Reliability .. 67 The Confrontation Rule . 68 Discussion . 71 Analysis of the Evidence Generally .. 72 Kang Shooting . 72 Music Video . 79 Malhi Shooting . 81 Post Offence Conduct 89 Defence Position on Mr.

Nguyen’s Knowledge .. 90 Conclusion .. 91 Introduction [ 1 ] Tyrel Hieu George Mahoney Nguyen, also known as Tyrel Quesnelle, is charged on a direct indictment with four offences. In Count 1, he is charged with first-degree murder of Jagvir Singh Malhi on November 12, 2018 at or near Abbotsford, British Columbia. In Count 2, he is charged with first-degree murder of Randeep Kang on October 27, 2017. In Counts 3 and 4, he is charged with attempted murder of Gary Kang and Camilo Alonso, also on October 27, 2017.

The events in Counts 2-4 are alleged to have occurred in Surrey, British Columbia. [ 2 ] The Crown relies on statements that were made by the accused to an agent, A.B., who was a long-time friend and confidant of the accused. A.B. is a key witness in this trial. Both parties describe A.B. as a Vetrovec witness: he has a lengthy criminal history from the time he was a youth.

He said that many of his criminal activities were committed with the accused. [ 3 ] A.B. is presently charged with attempted murder. [ 4 ] With such a background, A.B.’s evidence must be treated with care. [ 5 ] I will expand upon the nature of a Vetrovec witness later in this judgment, along with a caution that is required regarding his evidence. For the purpose of this introduction, I refer to R. v. Paterson , 2017 BCSC 536 , which provides a helpful synopsis of Vetrovec witnesses, beginning at para. 127:

An accomplice immune from prosecution is a competent witness. While competent, suspicion clouds the testimony of a witness whotrades his or her testimony for liberty. That cloud, however, may be lifted when independent evidence confirms the testimony. [Citations omitted.] [Emphasis in original.] [6] On April 9, 2019, A.B. came forward to the police and informed them about his associates and some violent events that hewitnessed. A.B. said that he had knowledge of the shootings of Randeep Kang, Gary Kang and Camilo Alonso and of Jagvir Malhi aswell as some information about a shooting of two youths in Surrey.

He suggested to the officers that he knew who was responsible forthe shootings of the Kangs and Mr. Alonso and of Mr. Malhi and how and why they did it. He referenced somebody he referred to as“Y.G.”. [7] At the behest of the police, A.B. met the accused on 12 occasions (referred to as scenarios) at an Edmonton apartment inDecember 2019. [8] These scenarios involved the placement of a whiteboard in what was purported to be A.B.’s apartment where he and Mr. Nguyenwould meet. They would converse by writing on the whiteboard (whiteboard conversations).

The interactions and the writing on thewhiteboard were recorded by audio and video by undercover police officers. [9] The Crown relies on the statements in writing and the words and gestures made by the accused during these scenarios,corroborated by the investigative evidence gathered by the police during their investigation of the Kang and Malhi murders and theattempted murders of Gary Kang and Camilo Alonso. [10] The Crown asserts Mr. Nguyen is guilty of the charges as either the shooter or an aider and abettor in both murders. [11] The defence asserts that the issue here is the identification of the accused.

Mr. Nguyen argues that the evidence of A.B. fallsshort of proving beyond a reasonable doubt that he was involved in any of the shootings and in many instances relies on A.B.corroborating his own evidence. The whiteboard conversations, the accused argues, do not corroborate A.B. At best, he says, theydemonstrate that Mr. Nguyen had knowledge of the offences but do not go as far as to demonstrate that he participated in the murders. Criminal Code Provisions Murder [12]

Section 229 of the Criminal Code, R.S.C. 1985, c. C-46 states: Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death … [13] Section 231(2) provides that “[m]urder is first degree murder when it is planned and deliberate.” Attempted Murder [14] Section 239(1) provides that “[e]very person who attempts by any means to commit murder is guilty of an indictable offence”. [15]

Section 21 provides: Parties to offence 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. Planned and Deliberate [16] A ‘planned’ murder is one that is “conceived and carefully thought out” before it is committed, one in which “the nature and theconsequences” have been considered and weighed by the offender (R. v. Nygaard, (SCC), [1989] 2 S.C.R. 1074 at para.18).

[ 17 ] Deliberate means “considered, not impulsive, slow in deciding, or cautious” ( Nygaard ibid ). A deliberate act is one where the individual has thought about the consequences and taken the time to weigh the advantages and disadvantages of the action ( R. v. Denison , 2001 BCCA 703 at para. 14 ). [ 18 ] Planning and deliberation may be inferred from the manner in which the murder is carried out ( R. v. McPherson , 2014 ONCA 223 ). Randeep Kang, Gary Kang and Camilo Alonso Investigation [ 19 ] Mr.

Nguyen is charged with one count of first-degree murder and two counts of attempted murder in relation to these incidents on October 27, 2017. Randeep (known as Randy) Kang was shot and killed. His brother, Gary Kang, was shot but not killed. A third person, Camilo Alonso, was found at the scene. [ 20 ] Mr. Nguyen agrees that there is no doubt that Randy Kang was murdered and given that Gary Kang was located at the scene with serious gunshot wounds, there is a compelling case that someone attempted to murder him.

The accused says that there is no evidence supporting that Camilo Alonso was shot. [ 21 ] The incident took place near Bolivar Park, off of Alpen Place in Surrey. There is no issue regarding the time or location of the incident, nor the identity of Randy Kang or his brother, Gary Kang, or Camilo Alonso. It was also admitted that Randy Kang died as a result of gunshot wounds and Gary Kang suffered some gunshot wounds. Vehicles [ 22 ] On October 27, 2017, at approximately 9:00 p.m., a burned blue 2011 Ford Escape was found in Surrey. Two licence plates (DLE 047) were found near the burnt vehicle.

Police determined that the vehicle belonged to J. Dolman from whom it had been stolen on October 8, 2017. The plates belonged to H. Robinson. A witness, S.

Mann, observed those plates being removed on October 27, 2017 from a black Ford Escape and the rear licence replaced with the licence plate 132 TPL. [ 23 ] From the evidence I can infer that on October 23 or 24, 2017, Rohit Kumar and Hardil Cheema rented a dark blue Hyundai Elantra bearing licence plate EF0 13G from Enterprise Rent-a-Car at 5609 Imperial Street in Burnaby. [ 24 ] I am satisfied that on the basis of admissions and the CCTV footage from 93rd and 129th Street in Surrey that this vehicle was used to steal the rear licence plate (132 TPL) from a black Pontiac Wave owned by A.

Chanda on October 27, 2017, and to steal the licence plates (DLE 047) from H. Robinson’s black Ford Escape that same day. [ 25 ] It is admitted that on October 30, 2017, at 12:42 a.m., a citizen called the Burnaby RCMP dispatcher and reported a vehicle fire. The burnt vehicle was a Nissan Sentra with no licence plates, owned by a director of Best Price Car & Truck Rentals located at 1789 Robson Street in Vancouver. The subject of this vehicle comes up in the context of the whiteboard conversations.

Murdoch Videos [ 26 ] As part of the investigation, police obtained CCTV footage for the public areas of 7333 Murdoch Avenue in Richmond for October 20, 2017 (Murdoch videos). The evidence establishes that at that time, Rohit Kumar lived in suite 1303, in Park Residences Tower B at 7333 Murdoch Avenue, Richmond. [ 27 ] The rented Hyundai is seen in the Murdoch videos on October 25, 2017 at approximately 9:14 a.m. in parking level one of 7333 Murdoch Avenue. Approximately two minutes later, at 9:17:11 a.m., Mr. Kumar is seen with the accused in the elevator hallway.

It is a reasonable inference that they had both occupied the parked rental vehicle. Seconds later they are joined by others, including Mr. Cheema. [ 28 ] On October 27, 2017 at approximately 2:34 a.m. the Hyundai is seen entering the underground parking area of the Murdoch Avenue property. [ 29 ] Further observations were made on the Murdoch videos, including the comings and goings of another vehicle, a white SUV, with various individuals who A.B. identified in his evidence and to which I will refer in that context.

Shooting at Alpen Place [ 30 ] Several witnesses who were resident on Alpen Place in Surrey on the evening of October 27, 2017 gave evidence. Alpen Place is a cul-de-sac that has a pathway entrance to Bolivar Park to the north. There is one route in and out onto Crestview Drive that adjoins it. [ 31 ] On the evening of October 27, 2017, S. Amijee heard 7-8 ‘pop’ sounds in quick succession. Within a minute, she heard the sound of an accelerating vehicle exiting the cul-de-sac. The vehicle then returned after about three minutes and parked.

She observed an individual get out of the vehicle with something in their hand and run toward the cul-de-sac in a northeast direction along Alpen Place. She identified, on a large map of Alpen Place, where she saw the individual approaching Bolivar Park. She lost sight of the individual. After about 20 seconds she heard another 7-10 popping sounds with seconds in between them. Ten seconds after that, she called 9-1-1. She estimated that between hearing the first sounds and her calling 9-1-1, 10-12 minutes had elapsed. The 9-1-1 call was placed at 8:53 p.m. [ 32 ] On that same evening, J.

Kirpal heard cars driving ‘fast’ onto Alpen Place. She heard 10 sounds that she believed were

continuous shots being fired. After that she heard two or more male voices yelling in an angry tone of voice. She heard “why” and “man” and some swearing. After that she heard a second set of gunfire, five or six bangs, coming from Alpen Place. [ 33 ] Ms. Kirpal looked out her window. She saw two cars in front of her property. One was a navy blue or black older Civic like vehicle, and the other was an older SUV like a Bronco or Explorer, white on top with a darker colour on the bottom half. She saw three people enter two vehicles.

The two vehicles drove into Alpen Place at a high rate of speed and then retraced their route. Tires were screeching. The two vehicles were driving one in front of the other, almost tailgating. Ms. Kirpal then called 9-1-1. [ 34 ] After the vehicles left Alpen Place, Ms. Kirpal saw a man come out of the park, dragging his foot. She saw him approach a parked car and then walk up the driveway and come back down. He went back to the car, punched it, and then sat down crying. [ 35 ] K. Ganny lived on Alpen Place on October 27, 2017.

He was in his living room when he heard bangs – 8-10 at first, rapidly and in succession. He looked out onto Alpen Place and saw two vehicles driving out of the cul-de-sac towards Crestview Drive, one vehicle in front of the other. He described one vehicle as a grey or dark SUV and the other as a light-coloured sedan. The vehicles left Alpen Place at a very high rate of speed that Mr. Ganny estimated to be at least 80 kilometres per hour, possibly higher. [ 36 ] Mr.

Ganny said that within a matter of seconds, the two vehicles returned to Alpen Place and parked: the sedan in front of his home and the SUV in front of Ms. Kirpal’s home, to the west of the pathway entrance to Bolivar Park. He saw at least one person get out of the vehicle and heard a man say, in a frantic tone of voice, “Did you get him?” He heard the response, “I don’t know.” After about 30 seconds, both vehicles moved. After a further 15 seconds, Mr. Ganny could no longer see them but he observed 5-6 orange muzzle flashes in rapid succession. After that, Mr.

Ganny observed two vehicles speeding westbound, out of Alpen Place to Crestview Drive. [ 37 ] L. Moser lived on Alpen Place on October 27, 2017. In the evening his daughter alerted him to flashes. He ran to the window and saw orange flashes. Mr. Moser’s window looks directly onto Alpen Place. He saw an SUV pointed into the cul-de-sac and another vehicle pointing the opposite way. The shooting was coming from the passenger side of the SUV. [ 38 ] Mr. Moser left his window for a short period of time and then returned. The SUV had returned. It had either reversed the whole way or turned around.

It was now beside the other vehicle and both were in a position that they could drive straight out of the cul-de-sac. [ 39 ] Less than two minutes after he heard the first set of pops, Mr. Moser heard the second set of what he described as “muzzle flashes”, about 10. He did not see the vehicles leave the cul-de-sac. [ 40 ] Mr. Moser answered a knock on his door. A very tall man with long hair said “I don’t want to die.” Mr. Moser told the man that he would call 9-1-1 and then closed the door. After he called 9-1-1, Mr. Moser returned to his front door. The man was gone.

There was a lot of blood on the bench and chair outside Mr. Moser’s front door. [ 41 ] Det. Sledding arrived at the scene on Alpen Place at 11:05 p.m. on October 27, 2017. He saw the body of Randy Kang at the entrance to Bolivar Park. He also saw a white Infiniti with its headlights on, facing west on Alpen Place. It was approximately halfway between the entrance to Bolivar Park and Mr. Moser’s house. Det. Sledding removed a FOB from Randy Kang’s pocket and that FOB opened the Infiniti. [ 42 ] The fingerprints of Randy Kang, Gary Kang and Camilo Alonso were on the Infiniti.

Inside the vehicle was an Enterprise Rent- a-Car rental form for the vehicle in the name of Randy Kang, an interim B.C. driver’s licence in his name and prescription receipts for him. A British Columbia Identification and Services Canada card in the name of Camilo Alonso was also found inside. [ 43 ] Sgt. Robson interviewed Camilo Alonso shortly after midnight on October 28, 2017. He observed that Mr. Alonso was missing his left shoe. He testified that there was a small hole in the left shoulder of the sweatshirt or hoodie that Mr. Alonso was wearing.

The officer inserted a pencil through the hole and it passed through a similar hole on the back of the garment. [ 44 ] Sgt. Heather Burwell arrived at the scene on Alpen Place at 12:50 a.m. on October 28, 2017. She observed the white Infiniti. She remained on the scene until 6:30 a.m. that morning. While she was there, she placed police markers by the shell casings and bullets that she found. When she returned on October 28, 2017, at 12:35 p.m., she was informed that a left running shoe had been found. She placed a marker by that shoe. [ 45 ] Sgt. Burwell returned to the scene with Det.

Sledding on November 2, 2017, where she continued to place markers as she found bullets. Evidence of Bullets and Casings Placement of Shell Casings at Alpen Place [ 46 ] The shootings, according to the placement of the shell casings, was concentrated generally in three areas: 1. At the east end of the cul-de-sac around a large metal refuse container; 2. At the entrance to Bolivar Park; and 3. Around the body of Randy Kang. [ 47 ] This is demonstrated in several photographs of police markers beside shell casings that were entered into evidence. [ 48 ] One photograph shows Randy Kang lying on his back.

He is surrounded by a number of police markers of shell casings. Nine shell casings were found in the immediate vicinity of his body. He was shot at least nine times and on five of those locations and he was

most likely shot while he lay collapsed on the ground. [ 49 ] When Sgt. Burwell returned to Alpen Place with Det. Sledding on November 2, 2017, she went to the place where Randy Kang’s head and upper torso had been lying when he was found. Sgt. Burwell dug out four fired bullets. The four fired bullets are shown by markers on the ground in the photographs and a fifth one was found in the bush. [ 50 ] A large cluster of expended shell casings was found to the east of the cul-de-sac around a large metal refuse container. Based upon where he was found and the evidence of Mr.

Moser, it was Gary Kang who ran to the east in the end of the cul-de-sac and was followed there. He apparently was shot repeatedly in a determined effort to kill him.

From the pattern of the shell casings at the east end of the cul-de-sac where Gary Kang ran, it seems that he was chased to and around the large metal refuse container, but when he made his way to the front door of the residence, that is the Moser residence, the chase ended. [ 51 ] The forensic examination of the bullets and shell casings from Alpen Place established that at least three different firearms were used: a .40 calibre Smith & Wesson firearm (Gun “A”); a .40 calibre Smith & Wesson Glock Sigma semi-automatic pistol (Gun “B”); and the same or different 9mm firearm (Gun “C”).

The bullets and shell casings from the shooting scene show where Gun A, Gun B and Gun C were fired. [ 52 ] Gun A shot in all three main places of the shooting scene: eight shots in the Alpen Place cul-de-sac; five shots at the entrance to Bolivar Park; and five shots in the proximity of Randy Kang’s body. [ 53 ] Gun B shot in one area: 10 shots at the entrance to Bolivar Park. [ 54 ] Gun C shot in two places of the shooting scene: five shots in proximity to Randy Kang’s body; and one shot near Randy Kang’s body. [ 55 ] It is admitted that three different firearms fired the shells and casings recovered in Alpen Place.

Medical Evidence [ 56 ] Dr. Jason Doyle, an expert in forensic pathology, testified that Randy Kang died as a result of multiple gunshot wounds to his head. He estimated that Randy Kang was shot a total of 13 times and had 40 injuries to his body, 35 of which were gunshot wounds. There were three gunshot wounds to the front of his head and face. Dr. Doyle’s evidence as to the gunshot trajectories established that, with one exception, Randy Kang was mainly shot in the front of his body. [ 57 ] Dr. Sue Sidhu is a surgeon at Royal Columbian Hospital.

She operated on Gary Kang at just past midnight on October 28, 2017. Gary Kang required surgery to repair damage to his intestine and abdomen. He had a fractured pelvic bone. He had a bullet exit wound on his left shoulder, and a graze wound on his right forearm. Surgery to his abdomen revealed a gunshot wound that had gone through his colon on the left side. A bullet was removed from underneath the skin of the abdomen. Dr. Sidhu testified that most people receiving those injuries would die of them eventually without surgical or medical attention.

Departure from Vancouver [ 58 ] It is admitted that on November 5, 2017, Rohit Kumar, Mr. Nguyen and A.B. departed Vancouver for Edmonton on a WestJet flight. Music Video [ 59 ] A music video was tendered as evidence. The Crown suggests that portions of it contain admissions made by Mr. Nguyen about the killing of Randy Kang. [ 60 ] It is clear from viewing the video that the rapper on the video is Mr. Nguyen. [ 61 ] Specifically, Mr. Nguyen says in the music video: “Hop out the whip with a burner, bitch. Headshot.

I’m dumping clips that’s plural shit.” And, “I heard there was a tag, half a clip into his brain.” The Crown makes certain submissions in respect of the words that are used by Mr. Nguyen. “Hop out the whip” [ 62 ] The Crown submits that the lyrics, “Hop out the whip with a burner, bitch. Headshot. I’m dumping clips, that’s plural shit” refers to the killing of Randy Kang. Randy Kang was killed in Bolivar Park. The Crown alleges that Mr. Nguyen arrived at Bolivar Park in a vehicle and after exiting and walking a short distance into the park he shot Randy Kang multiple times. A “burner” refers to a firearm.

The Crown submits that a “whip” is a common reference to a vehicle. The Crown submits that Mr. Nguyen is describing exiting the motor vehicle with a firearm. [ 63 ] Regarding the word “headshot”, the Crown says that Randy Kang suffered multiple gunshot wounds, including three shots specifically to his head. [ 64 ] The Crown suggests that the lyrics “I’m dumping clips, that’s plural shit” refers to the numerous shots fired into the head and body of Randy Kang. “I heard there was a tag”

[ 65 ] The Crown submits the term “tag” in the context of “I heard there was a tag” refers to a price tag on Randy Kang’s head that would be paid to a contract killer. Jagvir Malhi Murder Investigation Vehicles [ 66 ] A blue Acura TL, bearing licence plates GW3 15H, was found burning in the area of 128A Street and 109 Avenue in Surrey by G. Maeda at approximately 4:20 p.m. on November 12, 2018. He phoned 9-1-1 within minutes. His neighbour extinguished the fire. About five minutes later firefighters arrived. Before the Shooting [ 67 ] In November 2018, Mr.

Malhi lived at 2355 Merlot Boulevard in Abbotsford, B.C. [ 68 ] At the time, S. Banwait lived at 2325 Merlot Boulevard. She described her neighbourhood as quiet. The neighbours knew each other. There was little traffic on her street. She said that there was a private Block Watch program on Facebook to which she contributed. She posted, as did others, about unfamiliar vehicles seen in the neighbourhood. [ 69 ] The killing of Mr. Malhi took place on November 12, 2018. One week before, on November 5, 2018, as Ms. Banwait was getting into her car around 11:00 a.m., she noticed a four-door navy blue Acura TL.

It had unfamiliar licence plates and tinted windows. She left her home around 11:00 a.m. and returned at approximately 12:30 p.m. She saw the vehicle was still there but parked in a different location. She made a note of the licence number, GW3 15H, and posted it on the Facebook page. [ 70 ] Ms. Banwait observed the same Acura TL on Merlot Boulevard on November 6. Over the next two days, she saw the Acura TL pass back and forth about six times. [ 71 ] R. Lalli resided at 2349 Merlot Boulevard in November 2018, next door to Mr. Malhi’s residence.

He also described the neighbourhood as quiet and said it was a family neighbourhood with light traffic. [ 72 ] In November 2018, Mr. Lalli had a CCTV professionally installed in his home (the “Lalli CCTV”). Two of the four cameras pointed at the front of his home that included a clear view of Merlot Boulevard and the driveway of the home next door. Mr. Malhi resided in the home next door. [ 73 ] After the murder, investigators came to Mr. Lalli’s home, viewed his CCTV footage, and seized it. It appears that the blue car seen in the footage is the same blue Acura TL as seen by Ms. Banwait on November 5 and 6.

The evidence from the Lalli CCTV shows that the person or persons inside the Acura TL was or were surveilling Mr. Malhi’s home. [ 74 ] Cst. Arrowsmith reviewed the Lalli CCTV. She testified about what she observed on it between the dates of November 5 and 12, 2018. [ 75 ] On November 5, 2018, the Lalli CCTV shows two individuals walking northbound on the north sidewalk of Merlot Boulevard at approximately 2:27 a.m. These two individuals do not walk past Mr. Malhi’s home. They enter his driveway.

The driveway had been in total darkness, but the video shows a light moving where, seconds before, it had been completely dark. The two individuals then walk southbound in the direction that they had come. One was wearing gloves. [ 76 ] At 10:56 a.m. on that same date, November 5, 2018, Cst. Arrowsmith described seeing a four-door sedan, dark blue in colour, which she believed to be the Acura TL heading southbound on Merlot Boulevard. She observed the front grill of the vehicle to be chrome with two horizontal lines and a curved line at the bottom, and the front and rear rims having five points or five stars.

She saw the same vehicle pass Mr. Malhi’s home eight times on November 5, 2018. [ 77 ] On November 6, 2018, she observed the blue Acura TL passing Mr. Malhi’s home 14 times. [ 78 ] According to the Lalli CCTV on November 7, 2018, the blue Acura passed by Mr. Malhi’s home three times. [ 79 ] On November 11, at approximately 2:11 a.m., two individuals appear on the Lalli CCTV walking northbound on Merlot Boulevard. It appears they are the same physical stature as the two men seen on the Lalli CCTV on November 5, 2018. Both walked north on the west sidewalk of Merlot Boulevard and disappeared into Mr.

Malhi’s driveway, after which there is a small light that appears where seconds before it had been dark. The two individuals walk back southbound on the sidewalk at approximately 2:12 a.m. At 2:31 a.m. the same individuals once again walk northbound on the west sidewalk of Merlot Boulevard and again entered Mr. Malhi’s driveway. A light appears in the same area as had been seen a few minutes earlier. These two individuals then left Mr.

Malhi’s driveway and walked south on the sidewalk. [ 80 ] On November 12, 2018, at approximately 1:08 p.m., a light-coloured sedan driving southbound on Merlot turned into the deceased’s driveway. At 1:11 p.m. the Acura TL drove by. It does so again at 1:22 p.m., 1:26 p.m., one minute later at approximately 1:27 p.m., again one minute later at 1:28 p.m. and at 1:30 p.m. Between one 1:11 p.m. and 1:39 p.m., a time span of 28 minutes, the Acura TL passed by the deceased’s home six times. [ 81 ] At 2:23 p.m. a white sedan drives southbound on Merlot entering Mr. Malhi’s driveway.

At 2:23 p.m. a different light-coloured vehicle reverses out of the driveway, travels northbound and returns at approximately 3:02 p.m. Fifteen minutes later at 3:17 p.m. we see the blue Acura pass by the deceased’s home for a 7th time and at 3:19 p.m. drive pass for the 8th time.

[ 82 ] The Lalli CCTV shows that a white sedan backed out of Mr. Malhi’s driveway and drove north towards Simpson Road at approximately 3:25 p.m. Driving northbound on Merlot Boulevard leads directly to Simpson Road which joins Ross Road to the west. Seconds after the white sedan, driving northbound, disappears from view the blue Acura speeds northbound on Merlot Boulevard following it. Every other time one views the blue Acura on Merlot Boulevard it is driving slowly. This time it is driving very quickly. [ 83 ] During his drive, Mr. Malhi phoned his friend, J.

Gill and spoke with him for approximately 30 seconds and then told Mr. Gill that he had been in an accident, or was rear-ended. The Shooting [ 84 ] N. Lalli was driving southbound on Ross Road towards Simpson Road on November 12, 2018 in the afternoon. As she approached Simpson Road, she saw a new model blue vehicle screeching its tires driving quickly towards her, heading northbound on Ross Road. The vehicle was partially in her lane as it approached. She then saw Mr. Malhi lying near the intersection of the two roads. She stopped her vehicle and called 9-1-1. She placed the call at 3:27 p.m.

The 9-1-1 operator, speaking on the speaker function of her phone, instructed one of the bystanders as to how to deal with Mr. Malhi. [ 85 ] R. Sidhu testified that just after 3:00 p.m. on November 12, 2018, he was driving southbound on Ross Road toward Simpson Road when he heard one or two sounds that he described as “bangs”. He estimates that there was approximately a 30-second interval between the two bangs. As he drove southbound, he saw a darker blue Acura TL speeding northbound towards him. He got a quick glance at the driver and noticed long black hair.

In his statement to the police he said that it was a woman driver but in his evidence in court he said that he could not be sure of that. [ 86 ] On November 12, 2018, M. Versteeg was inside the Ross Elementary School, located north of the intersection of Ross Road and Simpson Road, on the east side of Ross Road. She heard three shots in quick succession. She then heard the screeching of a car and saw a blue vehicle speed by her school going north on Ross Road. This occurred shortly after the school bell rang at 3:00 p.m. [ 87 ] B.

Maryniuk was driving east on Simpson Road approaching Ross Road when he saw a body lying in the middle of Ross Road. He attempted to provide medical attention, as did the others who had gathered. Mr. Maryniuk found a bullet that was covered with blood and tissue. He gave the bullet to police. [ 88 ] It was Mr. Malhi that lay on the road. Attempts to resuscitate Mr. Malhi were unsuccessful. He died in the helicopter on the way to the hospital. Evidence Found at the Scene [ 89 ] When Sgt. Foster viewed the body of Mr. Malhi, he noticed that on the ground, by Mr.

Malhi’s right hand, was a cellphone, a key FOB and Mr. Malhi’s vehicle registration papers for the white Volkswagen Jetta parked on Ross Road. This is consistent with Mr. Malhi believing that he had been rear-ended and leaving his vehicle, with his insurance papers, to discuss the accident. [ 90 ] Eight spent shell casings were seized. One was found underneath where Mr. Malhi’s white Jetta was parked on Ross Road. Two spent rounds were found by means of a metal detector which was employed on both sides of Ross Road. [ 91 ] Sgt. Foster examined the head of each of the shell casings seized at Ross Road.

Each of the shell casings was a Luger 9mm. Evidence Found in the Acura TL [ 92 ] As noted, Mr. Maeda and his neighbour attended the Acura which was on fire, near his home in Surrey. [ 93 ] Because the fire was quickly extinguished, evidence was recovered from the Acura TL. [ 94 ] On November 12, 2018, Cst. Harris seized a Samsung cellphone from the partially burnt Acura TL. On November 13, 2018, Sgt. Foster photographed the cellphone and conducted a fingerprint examination of it. He saw some possible glove marks and also some ridge detail but not enough to identify any latent prints.

He also swabbed the phone for possible DNA. [ 95 ] Four gloves which had the label “Mechanix” were found in the Acura TL. All were size 9, medium. There were two for the left hand and two for the right, thus, two pairs of “Mechanix” gloves. [ 96 ] Seven balaclavas were found in the vehicle. The DNA of the accused was located on the interior of one of balaclavas, between the eye and mouth openings. [ 97 ] In total, 10 shoes were found in the car.

They were of three different brands and two different sizes, 9 and 10. [ 98 ] Five black hoodies were found: three size mediums and two size large. [ 99 ] Five pairs of pants were seized: two size medium, two size large and one extra large. [ 100 ] A box of “Grease Monkey” disposable gloves was found in the back of the vehicle. An identical pair of these gloves was found in the interior of the driver’s door, in the side pocket with the accused’s DNA on them. [ 101 ] Investigators found a pair of size 9, medium “Mechanix” gloves in the Acura with the DNA of Joseph Whitlock, found on both gloves.

[ 102 ] Two boxes of 9mm ammunition were found in the car with the trade name Winchester. Fourteen bullets were missing from the box. A box of Blazer Brass 9mm ammunition was also found. Ten bullets were missing from this box. [ 103 ] Five live rounds of 9mm ammunition were found in the car. [ 104 ] A Smith & Wesson 9mm handgun was found in the vehicle with an empty magazine inserted. This was determined to be the firearm that killed Mr. Malhi. [ 105 ] On November 13, 2018, Sgt. Foster examined Mr. Malhi’s vehicle looking for tracking devices and found none.

Damage to the Vehicles [ 106 ] Police observed damage to the front of the Acura TL and to the back of the white Jetta. [ 107 ] Cpl. Nahal examined the front of the Acura and noted damage to the front of it in two places: underneath the passenger side of the grill and two scrapes or abrasions above the grill and to the right of the licence plate. She noted two areas of abrasion on the licence plate of the Acura TL. [ 108 ] Sgt. Foster examined the rear of the Jetta and found damage to the rear bumper under the licence plate.

There was an indentation that curved at the top and there was a circular formation to the right of that. He noted something blue on the bottom portion of the indentation. There was no analysis to determine whether or not it was paint. [ 109 ] Measurements were taken from the damage noted on both vehicles to the ground. On the Jetta, the damage is 21 inches from the ground. On the Acura, it is 17 to 18 inches from the ground. Medical Evidence [ 110 ] Dr. Doyle performed the autopsy of Mr. Malhi. Dr. Doyle concluded that the cause of death was multiple gunshot wounds to the head, torso and arms.

The injury to the brain was “catastrophic”. The blood loss from the injuries to the right lung and spleen also contributed to Mr. Malhi’s death. Dr. Doyle estimated that Mr. Malhi was shot a total of eight times from the back, with no shots to the front. He had 40 injuries to his body, 33 of which were gunshot wounds. [ 111 ] Dr. Doyle also provided possible trajectories of the bullets:

a) A gunshot entered the left side of the skull and went through the brain and exited the right side of the skull.

b) A gunshot entered the left thorax and exited the right trapezius area causing an exit and graze injury.

c) A gunshot entered the left back thorax, went through the internal body and exited the right side torso.

d) A gunshot entered into the left back thorax, went through the liver and exited the mid torso.

e) A gunshot entered the back thorax, went through the thorax and exited the right thorax.

f) A gunshot entered the back left upper arm and exited the left upper arm, re-entering the left chest and then lodging in the right upper arm.

g) A gunshot shows a graze abrasion on the exterior right elbow.

h) A gunshot shows a graze abrasion to the exterior right forearm. [ 112 ] Dr. Doyle said that the trajectories have certain vulnerabilities and depend on how the bullet enters the body and what it hits going through the body such as different types of tissue and bone. Tracking the World [ 113 ] Cpl. John Choi reviewed the extraction report for the Samsung cellphone found in the blue Acura TL. Upon reviewing the extraction report, Cpl. Choi noticed the following:

a) Data for the Samsung cellphone was available from October 22 to November 8, 2018.

b) The user of the Samsung cellphone went to a website called “Tracking the World”. The website allows those who purchase a tracking device to access data related to the tracking device.

c) The user of the Samsung cellphone went to the Tracking the World website to access the data for the tracking device with the serial number “388165”.

d) The user of the Samsung cellphone went to the Tracking the World website and entered the tracking device number 388165 on October 25, 28, November 2, 5, 6 and 8, 2018. This included: i. six visits on November 5; ii. 25 visits on November 6; and

iii. 53 visits on November 8.

e) The user of the Samsung cellphone searched on Google Maps the address of 2337 Merlot Boulevard on November 5 and 6, 2018. [ 114 ] After reviewing the extraction report to the Samsung cellphone, Cpl. Choi went to the Tracking the World website. He was prompted to put in the serial number for the tracking device (388165). Upon doing so, he was shown all the tracking data for that tracking device. Cpl. Choi’s review of the tracking information for the tracking device 388165 on the Tracking the World website showed the following:

a) Tracking device 388165 went to Merlot Boulevard on October 25, 26, 29, 30, 31, and November 1, 2, 5, 6 and 11, 2018.

b) On November 5, 2018, the tracking device went to Merlot Boulevard at 2:20:31 a.m., 2:28:34 a.m., 1:16:45 p.m., 3:27:20 p.m. and 7:56:10 p.m.

c) On November 5, 2018, the tracking device went to the University of the Fraser Valley library at 7:34:19 p.m. J. Gill testified that Mr. Malhi attended that university.

d) On November 11, 2018, the tracking device went to Merlot Boulevard at 2:33:34 a.m. On that date, at that approximate time, on the Lalli CCTV, one sees two men enter Mr. Malhi’s driveway, a light is seen and then they walk southbound.

e) On November 5, the blue Acura passed by Mr. Malhi’s home eight times; on November 6, 14 times; on November 7, three times; on November 11, once; and on November 12, the day of the killing, eight times. The Acura passed the Malhi residence a total of 34 times over a five-day period. Video Compilation [ 115 ] Cpl. Chase Smith attended the scene of Mr. Malhi’s murder and then the burn site of the Acura TL on November 12, 2018. He scanned both areas for CCTV footage. [ 116 ] Cpl. Smith also attended Surrey City Hall to review traffic camera footage for November 12, 2018.

He also referred to the Lalli CCTV and incorporated all of this footage into the video compilation that he prepared. [ 117 ] CCTV from 109 Avenue disclosed two vehicles westbound, in tandem: an Acura TL and a white Mazda. [ 118 ] Cpl. Smith and another officer canvassed the most likely route from the murder scene in Abbotsford to the burn site in Surrey and attempted to obtain video from any potential route. [ 119 ] On November 20, 2018, Cpl. Smith learned that the accused’s fingerprint was found on the trunk of the Acura TL.

He looked up Tyrel Nguyen on PRIME and learned that one of his associates was his brother, Deshawn Nguyen. [ 120 ] Admissions demonstrate that Deshawn and Tyrel Nguyen are brothers; on November 12, 2018, Deshawn was living at unit 612, 68 Smithe Street in Vancouver and had lived there since May of that year; on November 12, 2018, Deshawn was the registered owner of a 2007 white four-door Mazda 3 with Grand Touring trim level, B.C. licence plate GR6 71K; on November 12, 2018, Deshawn held a “Novice” driver’s licence requiring him to display a green and white “N” decal on the rear of any vehicle he was operating; and the video images of the white sedan seen at all times was following a blue vehicle.

Deshawn’s White Mazda [ 121 ] The compilation begins with Deshawn Nguyen’s white Mazda leaving 68 Smithe Street in Vancouver at 3:11 p.m. [ 122 ] The Mazda is distinguishable in that the passenger sun visor is down; the vehicle has a sunroof; the vehicle has Grand Touring trim; as part of the brake light system, the vehicle has a centre brake light located in the rear window of the vehicle that did not light up when the brake lights were applied; and there was a spoiler on the back of the vehicle.

CCTV footage in Abbotsford and Surrey [ 123 ] The residence at 2587 Ross Road is north of the intersection of Simpson Road and Ross Road. CCTV shows a dark coloured blue four-door sedan driving north past that address at 3:27:11 p.m. There are descriptions by several witnesses of the blue vehicle driving northbound from Simpson Road. The timing of the 9-1-1 call at 3:27 p.m. and the video recording at 3:27:11 appears to demonstrate that the vehicle was a four-door sedan, dark blue, with five spoke rims.

The blue vehicle leaves the CCTV view at 2587 Ross Road at 3:27:16 p.m. [ 124 ] The same blue vehicle is seen in the CCTV footage from a residence north of the previous residence, just seconds later. It is a dark blue four-door sedan with five spoke rims. The time lapse between the two locations is seconds. This is the last CCTV footage of the blue vehicle in Abbotsford. [ 125 ] In the compilation, the same vehicle is seen again in Surrey. CCTV footage was superimposed on a map of that part of Surrey.

Starting in the upper-right corner of the screen, there are eight yellow dots that were placed upon the compilation with camera icons inside them showing where the CCTV footage was obtained at each of these locations. In the bottom-left corner of the screen a red dot identifies where the blue burnt Acura TL was located. [ 126 ] In the upper-right corner of the screen the address 13307 King George Boulevard is identified with a yellow dot. The CCTV footage obtained from this address starts at a running time of 3:41 p.m. A dark vehicle is followed by a white vehicle.

[ 127 ] The CCTV footage from the eight locations in Surrey shows the white Mazda, driven by Deshawn Nguyen from his address in Vancouver, following the same dark blue Acura TL. [ 128 ] The coverage from 13307 King George Boulevard ends at the running time of 4:20 (4:09:02 p.m.) and then is immediately picked up by the Surrey traffic camera that records the blue Acura TL turning left from King George Boulevard onto the 132nd Street diversion followed by the white Mazda. [ 129 ] Based on the footage obtained of the suspected route by Cpl.

Smith, he suggested that when the blue Acura and white Mazda travelled, they are in tandem, with the white Mazda following the Acura TL. That is apparent from the CCTV footage that is referred to in the compilation. [ 130 ] The evidence is that Mr. Malhi and J. Gill spoke at 3:25 p.m., shortly before the shooting. The first recorded CCTV footage is from 2587 Ross Road at 3:27 p.m. The last recorded CCTV footage is from 12870 109 Avenue at 4:13 p.m. There is an interval with 46 minutes. This does not account for the times before and after each sighting. [ 131 ] N. Lalli’s 9-1-1 call was made at 3:27 p.m. Mr.

Maeda’s call about the burnt Acura TL was made at approximately 4:20 p.m., an interval of 53 minutes. Deshawn’s White Mazda Returns to 68 Smithe Street [ 132 ] The images of the white sedan seen in the parking area at 68 Smithe Street are of Deshawn Nguyen’s white Mazda. The time is 9:25 p.m. Comparison of Vehicles [ 133 ] The dark blue vehicle seen in Cpl. Smith’s video compilation is the dark blue vehicle identified by Cst. Arrowsmith as the Acura TL found at the burn site. She described the vehicle which drove back and forth past Mr.

Malhi’s home a total of 34 times over a five-day period as: a dark blue, four-door sedan; an Acura TL; a front grill that was chrome with two horizontal lines and a curved line on the bottom; and the front and rear tire rims having five “points” or “stars”. [ 134 ] Cpl. Smith’s video compilation tracks the movement of the four-door sedan from Ross Road to within two blocks of the site where the Acura TL seen by S. Banwait on Merlot Boulevard in Abbotsford was found in a partially burnt condition. [ 135 ] The visual comparison of the four-door sedan seen in Cpl.

Smith’s compilation precisely matches the description given by Cst. Arrowsmith. [ 136 ] The white vehicle being driven closely behind the blue Acura TL in Cpl. Smith’s video compilation was Deshawn Nguyen’s white Mazda 3. There are several characteristics of the white vehicle observed in the compilation to the white Mazda seen in the parking areas of 68 Smithe Street, Vancouver, that was owned by Deshawn Nguyen on November 12, 2018. [ 137 ] I find that while Cpl. Smith’s video compilation may not accurately reflect the route taken by the Acura TL and the white Mazda following the shooting of Mr.

Malhi, it amply demonstrates that the white vehicle seen driving closely behind the blue Acura TL was Deshawn Nguyen’s white Mazda 3. According to the video evidence of the entrance to the parking lot of Deshawn Nguyen’s Smithe Street apartment at 3:11 p.m. on November 12, 2018, Deshawn Nguyen was driving the white Mazda out of the parking lot. [ 138 ] I accept the evidence of Crown expert, Phil Ens, who provided details of the white Mazda shown in the videos.

It is the same vehicle make and year, the “N” is displayed on the back, the passenger side sun visor is down, the brake light in the rear window does not operate. There are other unique features. [ 139 ] In

summary, based on the evidence I find that:

a) the dark blue vehicle observed by S. Banwait on November 5 and 6, 2018, was the same vehicle recorded by the Lalli CCTV between November 5 and 12, that is, the Acura TL;

b) the Acura TL identified by S. Banwait as seen on the Lalli CCTV was the vehicle that collided with Mr. Malhi’s Volkswagen;

c) the Acura TL involved in the shooting of Mr. Malhi was the Acura TL found at the burn site;

d) the dark blue vehicle seen in Cpl. Smith’s video was the Acura TL seen in the Lalli CCTV and found at the burn site;

e) the white vehicle seen driving closely behind the Acura TL was Deshawn Nguyen’s white Mazda 3;

f) Deshawn Nguyen was driving his Mazda 3 following the blue Acura TL as seen is in Cpl. Smith’s video compilation. A.B. Becomes a Police Agent [ 140 ] In mid-December 2018, A.B. and his mother started living at the Nguyen family house in Surrey. A.B. and the accused were still involved in the drug trade. [ 141 ] In February 2019, A.B. started living with his friend, Blake Dutra. His mother was still living in the Nguyen family home. A.B. said he was no longer selling drugs and was in debt to Rohit Kumar. Mr.

Kumar instructed A.B. that he wanted to be repaid the debt A.B. owed him and if he was not he would “shit kick” him. Mr. Kumar and Mr. Nguyen suggested that A.B. could earn money “bagging

up drugs.” A.B. said that he found that insulting. [ 142 ] A.B. described an event around the same time where he used some MDMA from the inventory of the dial-a-dope business that he was involved in with Mr. Nguyen and Mr. Kumar. A.B. said he was assaulted in the presence of the accused because of his use of the MDMA. [ 143 ] In February 2019, A.B. said that he had a serious argument with Mr.

Nguyen and had no contact with him until he was instructed to do so by police later that year. [ 144 ] In March and April 2019, A.B. said that his mother was still living in the Nguyen family home. [ 145 ] After the argument with Mr. Kumar and the accused in February 2019, A.B. said that he began to rethink his lifestyle. He began thinking of getting out of the drug trade and having a regular life. He said he became concerned about his personal safety and realized that he was becoming useless to Mr. Kumar and to the accused. A.B. said that he was concerned about his mother’s well-being.

He said that he was her only child, that she had a horrible job that paid very little and he had to do something to get her out of the situation that he felt he had caused. A.B. said that he lacked faith that Mr. Nguyen would care for his mother if something happened to A.B. He said he decided to end his gang life and get away from selling drugs. [ 146 ] On April 9, 2019, A.B. approached one of the intake workers at End Gang Life, a program that was established by police about 10 years ago.

It is a highly publicized program that encourages individuals who are involved in the gang lifestyle to end that involvement. A.B. was not suitable for that program. He was referred to Sgt. Greg Foster. Sgt. Foster was familiar with A.B.’s background and who he was associated with. Along with Cpl. Robert Johnson, he met A.B. five times between April 10 and 14, 2019. Cpl. Johnson met with A.B. 17 times over the five-month period from April 10 to August 2, 2019. [ 147 ] A.B. told the police officers about his associates and some violent offences, events that he had witnessed.

He told them that he and Deshawn Nguyen were on bail for an assault in Port Coquitlam where he had stabbed two men. A.B. said that he wanted to get out of gang life. Sgt. Foster told him what it meant to be a confidential informant, a cooperating witness, and a police agent. Sgt. Foster told A.B. that no privilege was extended to him and informed A.B. that he should get independent legal advice. [ 148 ] As noted, A.B. informed the police officers that he had knowledge of three shootings. He said he knew who killed Randy Kang and Jagvir Malhi and how and why they did it.

He referred to somebody known as “Y.G.” A.B. said that he was concerned about his mother’s safety because she was living with Y.G. A.B. said he was also concerned about his debts. [ 149 ] A.B. said that if he were to cooperate with police, his mother would have to move out of Y.G.’s house. [ 150 ] The officers testified that A.B. did not ask whether he would be entitled to monetary compensation or a reward if he told investigators about the Kang and Malhi shootings in these first meetings.

The police did not bring the topic up. [ 151 ] Between April 24 and May 16, 2019, funding was approved for independent legal counsel and arrangements were made for A.B. to meet with counsel, which he did. A proffer letter was forwarded to the Crown. By May 16, 2019, independent legal counsel had spoken with IHIT. [ 152 ] By June 26, 2019, criminal history and non-jeopardy statements had been completed and matters were moving forward to have A.B. act as a police agent. [ 153 ] A.B. voluntarily provided a DNA sample.

He testified that neither officer gave him any information about either homicide and he learned no details about the two murders from the police. The only evidence of an external source of information is a few details provided in two Abbotsford news articles about the Malhi murder that he saw and the police STIMS (which I will explain further later). [ 154 ] On September 4, 2019, A.B. signed his first Letter of Acknowledgment. The police wanted him to resume contact with the accused with whom he had not communicated since their argument in February 2019.

A.B. signed his second Letter of Acknowledgment on October 12, 2019 (October LOA), and understood that he was now agreeing to act as an agent for the police. A.B. understood that he was to attempt to get information in relation to the murders of Randy Kang and Jagvir Malhi. At this time the police had not advised him of any specific means by which he should do so. [ 155 ] In October 2019, A.B. said that he had had no contact with Mr. Nguyen since their falling out in February 2019. [ 156 ] The October LOA provides for an award payment to be determined at the discretion of the police, not to exceed $100,000.

The police advised that they were in a position to help but in order for A.B. to start over and for he and his mother to be safe, he would need money. The police were not prepared to simply give him money. He would have to become an agent and try and gather evidence. [ 157 ] At the direction of the police, A.B. reached out to a childhood friend, Blake Dutra, via Snapchat. Mr. Dutra was also a friend of Mr. Nguyen. A.B. then contacted Mr. Nguyen by Snapchat by replying to a message that Mr. Nguyen had sent months before.

A.B. made this contact at the instruction of police who wanted him to re-establish a relationship with the accused. After that, A.B. and the accused communicated again by Snapchat. They discussed the argument that they had had in February and why each had reacted the way that he had. [ 158 ] A.B. said that he and Mr. Nguyen first met in person on November 15, 2019, at Mr. Dutra’s apartment. Deshawn Nguyen was also there. A.B. and Deshawn Nguyen were both subject to bail conditions that they have no contact with each other related to the charge that was outstanding against both of them. A.B. introduced Mr.

Nguyen to “John”, who was also present, and said that John was his friend. John was an undercover police officer. [ 159 ] Investigators refer to this first meeting as Scenario 1.

[ 160 ] Between November 29, 2019 and December 20, 2019 investigators intercepted and recorded 40 phone calls between A.B. and Mr. Nguyen. [ 161 ] It appears that throughout the calls, A.B. and Mr. Nguyen re-established their relationship. They conversed in a friendly manner. The conversations contained many slang phrases. Neither A.B. nor the accused stopped to clarify the other’s meaning when using the slang words. There are, of course, no gestures associated with the telephone conversations. [ 162 ] The second recorded conversation took place on December 3, 2019. By this time both A.B. and Mr.

Nguyen were in Edmonton. Calls 2-7 relate to discussions regarding Mr. Nguyen’s attendance at what was purported to be A.B.’s Edmonton apartment. The conversation contains 12 slang expressions. Undercover Operation [ 163 ] Recalling that A.B.’s conversion to an agent began with A.B. providing information to the police about the Kang and Malhi murders, along with other information, police set up an undercover operation in December 2019, intended to obtain confessions from Mr.

Nguyen regarding the murders and attempted murders in October 2017 and November 2018. [ 164 ] Twelve undercover scenarios took place in the Edmonton apartment in December 2019: Scenario Date 2 December 3, 2019 3 December 4, 2019 4 December 5, 2019 5 December 6, 2019 6 December 7, 2019 7 December 8, 2019 8 December 9, 2019 9 December 11, 2019 10 December 16, 2019 11 December 18, 2019 12 December 19, 2019 13 December 20, 2019 [ 165 ] Police set up a whiteboard in the apartment in Edmonton that purported to be A.B.’s home.

They also set up five video cameras to record the written whiteboard conversations between A.B. and the accused. Each camera had a particular view of the whiteboard. They are labelled Whiteboard A, Whiteboard B, and Local Recording. Certain of the words and phrases that were written by each of A.B. and Mr. Nguyen can be clearly discerned by viewing the video of Whiteboard A. In certain circumstances the words and phrases are not entirely in view by means of only Whiteboard A, and a review of Whiteboard B is required.

Sometimes it is necessary to review the Local Recording. [ 166 ] Transcripts were prepared by Cpl. Mackie of Scenario 7 (December 8, 2019); Scenario 10 (December 16, 2019); and prepared by Cpl. Smith of Scenario 5 (December 6, 2019); and Scenario 8 (December 9, 2019).

Each gave evidence of the steps taken to ensure the transcripts were accurate. [ 167 ] During the scenarios, investigators connected a number of “STIMS” in the hope of promoting or provoking conversations between the accused and A.B. that may be of evidentiary value. [ 168 ] Before each scenario there was a “briefing” with police and the investigators, and after the completion of each scenario a “debriefing” of what occurred during that scenario. The briefings and debriefings were also recorded and transcribed.

Review of Pertinent STIMS and Whiteboard Conversations [ 169 ] The Crown provided evidence concerning Scenarios 5, 7, 8 and 10, including the recording and transcripts. [ 170 ] The recordings have been edited by police for relevance. Not all of the recordings were entered into evidence. Each recording that was entered into evidence is referred to by scenario number, date and sequence. [ 171 ] In this section, I refer to the STIMS, the scenarios and the evidence of A.B. I refer to the evidence of A.B. because it provides some assistance with comprehension.

In doing so at this time, I am not accepting A.B.’s evidence as truthful or that his

interpretation is accurate. I will leave that for my analysis of his evidence. [ 172 ] I have not referred to all of the whiteboard writings. Those that I refer to are put in chronological order as they were written. I have not included the times noted in the recordings, although they were necessary in marrying up the videos to the transcripts. Scenario 5 (December 6, 2019) STIM [ 173 ] The whiteboard conversation in Scenario 5 was preceded by police STIM involving Blake Dutra.

[ 174 ] Sgt. Bal understood that Blake Dutra was an associate of the accused and his brother Deshawn. On December 6, 2019 at approximately 3:50 p.m. Sgt. Bal and Sgt. Grewal went to Mr. Dutra’s residence in Surrey. Mr. Dutra was not present at that time. Sgt. Grewal wedged his business card into Mr. Dutra’s front door. The officers returned shortly after 7:00 p.m. on the same day and spoke with Mr. Dutra in the lobby of his condominium. [ 175 ] The investigators identified themselves and advised Mr.

Dutra that the accused and his brother Deshawn were involved in the drug trade and both were suspects in the homicide of Mr. Malhi. The officers told Mr. Dutra that Mr. Malhi was an innocent party. Sgt. Grewal used his phone and showed Mr. Dutra an updated news release in relation to the Malhi homicide that had been shown on Global television. The news release included a description of the vehicle that investigators thought was involved in the murder and described it as a darker Acura. The news release included that the investigators believed that Mr. Malhi was not the intended party.

The officer said that he thought the news clip included that the shooting had taken place in Abbotsford on Simpson Road. [ 176 ] Investigators believed that a person by the name of “Rucks” or “Ruckus” might be involved in the murder of Mr. Malhi and that Rucks’ real name was Joseph Whitlock. On December 6, 2019, Det. Sledding and Sgt. Fraser attended the home of C. Varga, who they understood was Mr. Whitlock’s partner. The officer told Ms. Varga that they were investigators with IHIT and advised her that Ruckus was involved in the homicide of Mr. Malhi. Det.

Sledding provided her with his business card and she entered his phone number into her phone. [ 177 ] A.B. said that he and Mr. Nguyen were watching movies on December 6, 2019 in the Edmonton apartment. Mr. Dutra sent Mr. Nguyen a picture of an IHIT business card on Snapchat. Mr. Nguyen called Mr. Dutra on Snapchat video. A.B. said he could hear the conversation. Mr. Dutra told Mr. Nguyen that when he got home from work and he saw someone standing in front of his door.

Another person joined that first person and they spoke to him saying something about “the noose is tightening” and gave him the IHIT business card. Mr. Dutra told Mr. Nguyen that the IHIT investigators told him they are investigating a South Asian guy that had been killed in Abbotsford in 2018. Mr. Dutra told Mr. Nguyen that the police had showed him, on their phone, some video coverage about an Indian guy and that he was innocent. He was a guy in college. [ 178 ] A.B. then typed “Abbotsford News” into his phone and accessed a news item about a homicide in Abbotsford. Once A.B. accessed that video footage Mr.

Nguyen used his phone and flipped the camera around so Mr. Dutra could also see the news item on A.B.’s phone. Mr. Dutra said that A.B. had found the correct news item. The news footage spoke of a 19-year-old South Asian male, a good person with no problems, attending college or university, that had been shot and killed in Abbotsford in 2018. [ 179 ] There is no video recording of the Snapchat video conversation between Mr. Nguyen and Mr. Dutra. [ 180 ] All of the interactions with Mr. Dutra involved the Malhi homicide.

This whiteboard conversation refers to that homicide. [ 181 ] A.B. said that the news footage that he and Mr. Nguyen were looking at related to the same news story Mr. Nguyen had showed him on his phone during a conversation on the porch of A.B.’s house following the Malhi murder. [ 182 ] A.B. said that after the Snapchat video conversation with Mr. Dutra ended, Mr. Nguyen started to grab his stuff and it looked to A.B. that he was going to leave. A.B. hoped to encourage further conversation with him by going to the whiteboard and writing the word “why”. [ 183 ] In answer to A.B.’s question “why” Mr.

Nguyen replies, “Telly wit R”. A.B. interpreted that to mean the hotel with Rucks. A.B. said “Rucks” is a nickname for Joseph Whitlock. Mr. Nguyen wrote “I told u”. In writing the “I” he crossed the vertical line with horizontal lines on the top and bottom. A.B. said that Mr. Nguyen had told him before, in detail, about his shooting of Mr. Malhi. Mr. Nguyen wrote “Quondo”. A.B. said that is a name of a younger man who worked with them on the drug line. Mr. Nguyen wrote “Was ther when I h (or “b)” which A.B. interpreted to mean that Quondo was there when the car was burned. Mr.

Nguyen went on to write “But only can prove that … if he-rats”. [ 184 ] Mr. Nguyen wrote “consparcy if … Me” and then “Ron Did”. A.B. said that “Ron” is also a nickname for Deshawn Nguyen. [ 185 ] A.B. wrote “Why they say”. He said he added “me”. Mr. Nguyen wrote “you were chillin wit me”. A.B. said that means he was associated with Mr. Nguyen. Scenario 7 (December 8, 2019) STIM [ 186 ] On December 8, 2019 Sgt. Bal placed his business card in a door at Green Timbers (B.C. RCMP headquarters) in Surrey and sent a photograph of that to A.B.

A.B. called the officer at approximately 5:38 p.m. and the two spoke for approximately six minutes. [ 187 ] A.B. testified that he received the picture of the IHIT card and that he was instructed to tell Mr. Nguyen that it had been left at A.B.’s mother’s door. When he showed the card to Mr. Nguyen, A.B. said that Mr. Nguyen’s response was “fuck man” and that Mr. Nguyen seemed stressed out. A.B. phoned the number on the business card and spoke to Sgt. Bal. The call was on speakerphone so that Mr. Nguyen could hear both A.B. and the officer speaking. Mr. Nguyen videotaped the phone call.

In this call the officer said that he was investigating a 2018 murder and that Tyrel and Deshawn were suspects in the investigation. The officer said that A.B. and his mother had access to a vehicle connected to the crime. The officer said that Tyrel was a “straight up contract killer.” The officer said that he wanted to speak in person with A.B. A.B. told the officer that he would give him a call when he was back in Surrey. [ 188 ] A.B. said that after the call Mr. Nguyen was “pretty stressed out.” They both began writing on the whiteboard. [ 189 ] This STIM was referring to the Malhi murder.

Sequence 1 [ 190 ] Mr. Nguyen wrote “Ruck might have done it on purpose he was burn”. A.B. understood that to mean that Rucks, on purpose, might not have properly burned the Acura TL. Then A.B. wrote “What was in car and why” and later in the sequence Mr. Nguyen wrote “Cloths”. A.B. wrote the word “Mazda”. He said he was referring to Deshawn’s white Mazda and he inquired because he was not sure if it was the one that had been burnt. Mr. Nguyen wrote “She drove to work was in ug” and “Aldo picked me up”. A.B. said that “Aldo” refers to Deshawn Nguyen. Mr.

Nguyen is saying that Deshawn picked him up and that “ug” refers to the underground parking. [ 191 ] Mr. Nguyen wrote “I NEED $ and lawyer”. A.B. said that he believed that was because police were indicating that Mr. Nguyen had killed somebody and that they had knowledge of it. A.B. asks in writing “What did they find i”. Mr. Nguyen makes a gesture with his hand. His index and middle finger were extended with the thumb aiming up, his other two fingers curled back. A.B. said that the gesture was of a gun. Mr. Nguyen then wrote “t was covered in gas an in fire”. It was after that that Mr.

Nguyen wrote the word “Cloths”. Sequence 2 [ 192 ] In Sequence 2, A.B. wrote “is that it?” Mr. Nguyen responded “quondo can rat out”. A.B. wrote “they said my mom want to tak”. Mr. Nguyen wrote “we sold Mazda long time”. A.B. wrote “Ruck or u”, and Mr. Nguyen then pointed to himself. A.B. wrote “Do you trust?” A.B. said that Mr. Nguyen made gestures that A.B. interpreted as “talking gestures”, which he understood to mean that Mr.

Nguyen believed that Rucks would not talk about it. [ 193 ] The documentary evidence shows that in November 2018 the white Mazda was owned by Deshawn Nguyen and that he sold it in January 2019. Sequence 3 [ 194 ] Sequence 3 is also recorded. A.B. said that the conversation on the whiteboard had nothing to do with the Kang or Malhi murders. Sequence 4 [ 195 ] This sequence begins with A.B. writing “What do I say Bout my mom Driving maxd”. A.B. said he was writing “What do I do about my mom driving the Mazda”. Mr. Nguyen wrote “Mom took it to work I smoke to much weed”. A.B. wrote “they have car IN news”. Mr.

Nguyen wrote “Prove it Guff”. A.B. wrote “the mazda only pick”. A.B. said that in the news

article regarding the Malhi murder there were pictures of two different vehicles, a white Mazda and another vehicle. A.B. said that the reference to “Prove it Guff” means “prove it police”. [ 196 ] A.B. wrote “the Mazda only pick”. A.B. cannot recall if that refers to somebody being picked up, but A.B. was referring to the other vehicle, not the Mazda. He then wrote “Wtf with other rid a” and said that what he was referring to the other vehicle that the white Mazda was following. Mr. Nguyen appears to respond and wrote “insid caught fire got put out”. Mr.

Nguyen wrote “water cross contamination” and “DNA should be edmisable”. A.B. said that Mr. Nguyen believed that the water used to put out the fire in the Acura would make DNA analysis impossible and therefore the evidence would be “edmisable”, which was his misspelling of the word “inadmissible”. A.B. thought that Mr. Nguyen meant inadmissible but he does not recall if he confirmed that with Mr. Nguyen. [ 197 ] A.B. then wrote “Why they want mine?” A.B. said he was referring to the DNA request. Mr. Nguyen wrote “Apply pressure they would just hand out Canada wide w” followed by “if they had enough”. A.B. said Mr.

Nguyen meant that the only reason the police were asking for A.B.’s DNA was to apply pressure and that if they had enough evidence they would have already issued a warrant. [ 198 ] On December 6, 2019, during the conversation Mr. Dutra had with Mr. Nguyen, Mr. Dutra said that the news story the police showed him described that the person who was murdered was an innocent guy. A.B. referenced that when he wrote in this sequence “was not supose to be him” in response, Mr. Nguyen wrote “just new Dip in gudi”. A.B. interpreted this. He said “Gudi” refers to a car and the word “Dip” refers to an East Indian person. Mr.

Nguyen then wrote “stressed bare face no cams from what I seen”. A.B. interpreted that to mean Mr. Nguyen killed Mr. Malhi without a mask and that there were no cameras from what he saw, but that Mr. Nguyen was stressed out that there could have been cameras. [ 199 ] Mr. Nguyen wrote: “They know but not enough to prove”. A.B. responded “If there was it would Be on News”. Mr. Nguyen wrote “They know but not enough to prove”. A.B. wrote “Were (pointing to his chest) choked it was wrong”. Mr.

Nguyen shakes his head “no.” They go on to discuss “GG’s brother”, who A.B. said refers to Gavin Grewal, the leader of the Brothers Keepers gang, who was murdered. Sequence 6 [ 200 ] In Sequence 6, Mr. Nguyen wrote “If anything Ruc tryrng to frame me maybe he put burner where it wouldn’t burn”. A.B. said that a “burner” in this context refers to a gun. A.B. said he understood that “frame” meant that Rucks was trying to implicate the accused in the Malhi murder. He agreed in cross-examination that “frame” could suggest that Mr. Nguyen was being wrongfully accused of murdering Mr. Malhi.

However, A.B. said that he believed that “frame” could also apply to circumstances where Mr. Nguyen had committed the offence. [ 201 ] A.B. wrote “Gloves”. Mr. Nguyen wrote “Ride wasn’t stolie...had to drive around abby for a couple hours on track follow”. A.B. understood that remark to mean that Mr. Nguyen said that the vehicle that he was driving was not stolen and that he had to drive around Abbotsford for a couple of hours following a tracker on someone’s vehicle.

Scenario 8 (December 9, 2019) STIM [ 202 ] Scenario 8 took place on December 9, 2019. Before the whiteboard conversations there was a further police STIM involving Mr. Nguyen’s mother. [ 203 ] On December 9, 2019, Det. Sledding contacted the accused’s mother, Jennifer Harrison, at her residence. He was accompanied by Sgt. Raj Grewal. A woman answered the door and confirmed that her name was Jennifer Harrison. The officer told her that the police were investigating a 2018 homicide file of Jagvir Malhi. The officer told Ms.

Harrison that this had been an innocent male victim and that the accused was the suspect and the lone shooter. The officer told Ms. Harrison that Mr. Nguyen was a suspect in three homicide files, that he was pulling his brother Deshawn into the situation and those incidents. The officer told Ms. Harrison that the car that had been used had not been burned and there was DNA that was recovered as evidence. The officer showed Ms. Harrison the IHIT news media release that contained an image of the Mazda. Det. Sledding testified that Ms. Harrison looked over the article.

He described her emotional demeanour as very upset, distraught and on the verge of crying. He provided her with his contact information. [ 204 ] A.B. said that before they began writing on the whiteboard on December 9, Mr. Nguyen received a phone call from his mother. Mr. Nguyen told A.B. that his mother had told him that the police had informed her that he was wanted for murder. A.B. said that Mr. Nguyen looked stressed out and upset by the phone call. [ 205 ] A.B. then received a text from the police. He told Mr. Nguyen that it was from his own mother, that is A.B.’s mother. He told Mr.

Nguyen that in her text his mother told him that the police had given her a business card. A.B. said that Mr. Nguyen again appeared stressed. [ 206 ] A.B. called the number on the IHIT business card and had a conversation with an investigator, Cpl. Smith. He had his phone on speaker and Mr. Nguyen was able to hear both A.B. and the officer’s conversation. [ 207 ] In the call Cpl. Smith said he wanted to get a consent DNA sample from A.B. He tells A.B. that Mr. Nguyen “significantly screwed up” on the hit with Mr.

Malhi; they hit the wrong person; they did not burn the car properly and that the police have evidence to close the investigation; and because the car was not burnt properly investigators were able to get multiple “DNA hits”. Cpl. Smith said that this was why they wanted to get A.B.’s DNA sample. [ 208 ] Cpl. Smith told A.B. in this telephone conversation that they were closing in on the accused and that he was going to jail. He said A.B.’s mother had been seen driving the “the white Mazda” associated with the Malhi homicide and described the vehicle.

Sequence 1 [ 209 ] A.B. wrote “Who was all there when it went Down”. A.B. said he was referring to the Malhi murder based on the preceding STIM. To this question A.B. said Nguyen wrote “me, Ruck”. [ 210 ] The word “me” is not obviously apparent. [ 211 ] Cpl. Smith took steps to discern what was written. As the whiteboard conversation between A.B. and Mr. Nguyen took place Cpl. Smith was live monitoring the interaction. He was viewing the conversation on a tablet and recorded his notes to be certain of the writing he had observed; on December 10, 2019, Cpl.

Smith continued working on the transcript in his hotel room in Edmonton using the same tablet. The tablet had a zoom feature which Cpl. Smith used; he used what he had written in his notebook in advancing the transcript. Cpl. Smith used the tablet to go back in date and time to the sequence and would pause, rewind, and go frame by frame. On December 10, 2019, the officer spent approximately two hours reviewing Scenarios 5 and 8. [ 212 ] When initially preparing the transcript for Scenario 8, the officer spent approximately three hours preparing the transcript for Sequence 1.

In addition to this initial transcript the officer undertook additional follow-up in relation to the issue of whether Mr. Nguyen wrote “Me, Rucks”. [ 213 ] Cpl. Smith followed up by creating a second USB that contained a second PowerPoint presentation from the 83 still images that he created from the original 42-second clip. The purpose of the second PowerPoint presentation was to allow the viewer to see precisely where Mr. Nguyen placed the tip of the marker on the whiteboard. Cpl. Smith described tracing the movements of Mr. Nguyen’s marker on the whiteboard.

The same 83 still images were used in the second PowerPoint. The difference is that the blue dots and lines connecting those dots were placed in the first 63 still images of the PowerPoint. Cpl. Smith placed the blue dots at the centre of where Mr. Nguyen had placed the tip of his marker on the whiteboard. In the final frames of the PowerPoint Cpl. Smith enlarged and connected the dots and this showed that Mr. Nguyen wrote the words “Me, Ruck”. [ 214 ] Cpl. Smith said that his procedure produced what A.B. had interpreted the words to mean. Cpl.

Smith agreed that he was looking at the writing from an angle that did not allow the horizontal space between the movements to be discerned; only the vertical movements could be discerned. [ 215 ] A.B. wrote “Do You think His tool Actually Jamed”. A.B. said a “tool” means a gun and he was asking Mr. Nguyen whether he thought that Rucks’ gun actually jammed and did not fire. Mr. Nguyen shakes his head back and forth indicating “no”. A.B. wrote “He could Be saying it Did But to frame”.

A.B. said in his evidence that he was present in a hotel room when both men examined the Glock, the gun that Rucks brought with him, and wondered out loud why the weapon had not worked. [ 216 ] A.B. wrote “Would they have found tracker N link Back?” A.B. said that he was asking whether the police would have found a tracker on Mr. Malhi’s vehicle and be able to track it back to whoever placed it. Mr. Nguyen shook his head no and waived his hand no. This knowledge must have come from the fact that Mr. Nguyen knew that there had been a tracker that was installed on Mr. Malhi’s car

and removed before Mr. Malhi was shot. Sequence 2 [ 217 ] In Sequence 2, Mr. Nguyen wrote “Melo GK”. He changed the “e” in “Melo” to “I” so that his written remark is “Milo GK only witness”. A.B. said Camilo Alonso is commonly referred as “Milo” and Gary Kang is commonly known as “GK”. They both survived the attack. These two men were potential witnesses to the shooting. A.B. said to ensure that he understood that Mr. Nguyen was talking about the Randy Kang murder, he wrote “for RK”. Mr. Nguyen nodded his head yes. A.B. wrote “Maly” referring to the Malhi murder. Mr. Nguyen shook his head no.

Sequence 3 [ 218 ] A.B. said that he continued the discussion of the Randy Kang murder by asking “Did e ither of them see u”. He said he was asking whether Camilo Alonso or Gary Kang saw Mr. Nguyen when he killed Randy Kang. Mr. Nguyen nodded yes. A.B. wrote “Just talk”. A.B. said that the details of the murder were not widely known or known to the gang community. Sequence 4 [ 219 ] Mr. Nguyen wrote “If mash covered in gas bless no?” A.B. said that the word “mash” refers to a gun and the word “bless” means that it is good or very good.

A.B. interpreted this to mean the accused saying that if the gun had been covered in gas there would be no problems in terms of the presence of DNA or fingerprints. Mr. Nguyen wrote “they would of gave w already”. A.B. said he understood this to mean that if there was evidence to be derived from the gun found in the burnt Acura TL, the police would have issued a warrant already. Mr. Nguyen would know that the gun was covered in gas because there was an attempt to set the Acura TL on fire. Sequence 5 [ 220 ] A.B. wrote “Is Ruck DNa on tool”. A.B. said he was asking if Rucks’ DNA was on the gun he used.

The accused motioned a thumbs up indicating yes and then wrote “Bot but wiped down after drill”. A.B. said “bot” meant both. A.B. interpreted “drill” to mean shooting or killing and the phrase to mean that both guns were wiped down after shooting. Sequence 6 [ 221 ] In Sequence 6 both men talk about the places to go: USA, Mexico, Panama, Cuba. Scenario 10 (December 16, 2019) STIM [ 222 ] In the previous scenario Mr. Nguyen had heard A.B. speaking with a police investigator and agreeing to voluntarily provide a DNA sample. A.B. told Mr.

Nguyen that he was travelling back to Surrey to provide the sample, but he did not, rather, he met up with investigators in Edmonton and participated in a façade of doing so. Mr. Nguyen had instructed A.B. to record the conversation by keeping his phone on and in his pocket. A.B. did that. This was known to investigators as the façade continued. [ 223 ] On December 16, 2019, A.B. and Mr. Nguyen met at the front door of the apartment building. When they were in the elevator to the apartment, A.B. said Mr.

Nguyen appeared anxious to have the recording of the DNA sample being given by A.B. [ 224 ] Before playing the recording, A.B. said that Mr. Nguyen appeared to be stressed and nervous as to what he was about to hear. Mr. Nguyen asked A.B. “how bad is, how bad is it? Out of 10?” A.B. replied that on a scale of 1 to 10 it is an “8. It’s pretty fuckin bad man. You know? ...that’s all I can say.” After playing some of the recordings A.B. stated “I just listened to them for 25 minutes. I said o

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