R. v. Dhaliwal, 2014 MBPC 64

R. v. Dhaliwal Citation 2014 MBPC 64 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Janna A. Hyman, for the Crown ) - and – ) ) Chandeep Singh Dhaliwal ) ) Ryan P. Rolston, for the Accused ) ) Judgment delivered: ) November 21, 2014 K. MOAR, P.J. Introduction [ 1 ] Chandeep Singh Dhaliwal (“accused”) brings an Application seeking his judicial interim release on a number of charges under The Controlled Drugs and Substances Act (“CDSA”) arising from Project Sideshow. Counsel for the accused concedes that pursuant to s. 515(6) (

d) of the Criminal Code of Canada it is his client who bears the onus on this Application. [ 2 ] The Crown has opposed the release of this accused on the secondary and tertiary grounds. [ 3 ] Pursuant to s. 517(1) of the Criminal Code of Canada , there is a publication ban on these proceedings. GENERAL BACKGROUND [ 4 ] By way of general background, in the spring of 2012 the Winnipeg Police Service Organized Crime Unit began an investigation they labeled Project Sideshow. This was an investigation that initially targeted four individuals who police suggest were associated with Asian Organized Crime.

The principle activity of this group of individuals was identified as being the importation of multiple kilograms of cocaine, methamphetamine and MDMA (commonly known as Ecstasy) into Winnipeg from Vancouver and Toronto based suppliers. [ 5 ] Based on the information filed in this Application, as well as the submissions made by Crown counsel, this was an extensive investigation undertaken by the Winnipeg Police Service.

In addition to the use of surveillance and other traditional investigative methods, police obtained a number of judicial authorizations which permitted the intercept of private communications; covert entries into residences, hotel rooms and luggage; the installation of video cameras and audio probes; the use of tracking devices on vehicles; the use of pinging for cellular phones; Production Orders and Dial Number Recorder Warrants. [ 6 ] The seven judicial authorizations permitting the intercept of private communications resulted in more than 300,000 intercepts being captured by police.

Even with that number, it is suggested by the police that the investigation showed there were many other communications from those under investigation that were not captured due to the use of an encryption device known as Pretty Good Privacy (“PGP”). [ 7 ] The last

Part VI authorization ended on December 31, 2013 and on February 5, 2014 Winnipeg Police undertook a coordinated arrest of those individuals they had identified as being involved in the commission of the offences. At 1114 hours on February 5, 2013, Winnipeg Police located this accused in his vehicle and placed him under arrest for the offences now before the court. He elected to exercise his right to speak with counsel and thereafter is alleged to have made comments that Crown counsel suggest are inculpatory.

However, given the purpose of the Application now before the court, those comments are not germane. [ 8 ] The investigation undertaken by police ultimately focussed on two individuals who they allege were operating their own drug networks independent of one another, although they did at times seem to overlap. The accused before the court is alleged to have been a trusted member of the Baljinder Singh (“Singh”) crime cell and was described by Crown counsel as a high level drug trafficker within that group.

His role within the cell was described as a middleman where he would direct Rayan Dizon ("Dizon”) with whom he was to traffic the cocaine, while also trafficking himself. In addition to those activities he was also observed on video at the drug stash location

cutting, weighing and packaging various drugs for resale. [ 9 ] The majority of the drugs that were being trafficked by this group were alleged to have originated from an individual in Vancouver, British Columbia who police have identified as being Ron Baldovi (“Baldovi”). It is suggested that Baldovi employed two main couriers who operated on his behalf by transporting multiple kilograms of cocaine and other drugs to Winnipeg in exchange for hundreds of thousands of dollars during of this investigation.

A third courier operating out of Toronto, Ontario was also identified by police and she too is alleged to have transported multiple kilograms of cocaine to Winnipeg for resale by the Singh crime cell. [ 10 ] During the course of this investigation police noted a general pattern where the couriers would arrive in Winnipeg with large quantities of cocaine packed in their luggage. Police were able to confirm this as a result of judicial authorizations that permitted the surreptitious entry into the luggage of the couriers by the police.

In the course of documenting those entries, police photographed multiple kilograms of cocaine that were being brought into Winnipeg as well as large quantities of Canadian currency being taken back to either Toronto or Vancouver by the drug courier. [ 11 ] Upon arriving in Winnipeg, the courier would often travel directly to a Winnipeg hotel where they would remain pending a meeting with the person who would be conducting the exchange. The hotels used by the couriers were often known in advance by police through the intercepted communications occurring between the parties.

In some of those instances police were able to covertly install audio and video probes in the hotel rooms which permitted them a first-hand look at the actual exchanges that were occurring between the parties. In many of those instances police were able to observe multiple kilograms of drugs being exchanged for large amounts of money that were bundled and vacuum sealed.

The courier would stays in Winnipeg were noted to be no longer than necessary to complete the transaction. [ 12 ] In addition to his alleged role in the trafficking of cocaine and other drugs, the accused before the court is also alleged to have participated in a conspiracy to possess firearms for the purpose of trafficking. [ 13 ] During this investigation police were able to identify separately located drug and cash stash houses that were used by this group.

In each instance police were also able to covertly install cameras in these locations pursuant to judicial authorizations they had obtained. [ 14 ] I will now set out a synopsis of the evidence that the Crown orally adduced at the hearing of this matter. Many of these instances are also detailed in the Crown’s Book of Materials that is labeled as Exhibit B1 in this proceeding. EVIDENCE [ 15 ] The first instance detailed by the Crown occurred at about 8:14 p.m. on April 30, 2013 when the accused and Singh were observed to enter a suite at 133 Market Avenue.

The Crown suggested this suite was utilized by the group throughout this investigation as a drug stash location and was where the group would bring the drugs they had purchased in order to cut and repackage them. Police had obtained an authorization to surreptitiously install a camera in the bathroom of this suite and it was from here that they were able to monitor the happenings in the suite. [ 16 ] In the suite, Singh was observed to pass the accused a bag that was later confirmed, through a covert entry into the suite, by police to contain one kilogram of methamphetamine.

The two men entered the bathroom and the accused was seen weighing out and placing the drug into controlled portions. In total there were twenty-eight bags created which is consistent with each of the bags containing one ounce, for a total of one kilogram. The accused was then seen to leave the suite at 8:42 p.m. [ 17 ] On May 5, 2013 police intercepted a communication from the accused to Dizon advising that he wanted to come and see him as he needed “two bucks for bus fare”.

That 10:31 p.m. phone call was followed by another call at 11:09 p.m. where the accused tells Dizon that he will be there shortly and they agree to meet in the back. At 11:14 p.m. Dixon was captured on video holding a large stack of money in his hand as he was leaving the suite to presumably meet with the accused. [ 18 ] The Crown suggests that May 7, 2013 is the first instance where the accused was intercepted directing the completion of a drug deal. On that day at 6:37 p.m.

Dizon contacted a male identified as Brian Gladue (“Gladue”) advising him that “Chan” and "Beej” told him to call about his request for a cut, which Gladue confirms in the communication. In the course of the investigation “Chan” was a name used to reference Chandeep Dhaliwal, “Beej” was Baljinder Singh and cut was code for drugs. [ 19 ] At 9:24 p.m., the accused called Dizon and directed him that he is to meet with Gladue to pick up “paper” from him. That request was acknowledged by Dizon who then asked the accused what amount of drugs was he to provide to Gladue.

The accused did not provide an immediate reply but moments later sent a text to Dizon, “2 single cuts bro”, which the Crown suggests is code for two ounces of cocaine. Within minutes of that text, a further text was sent by the accused advising Dizon that Gladue is waiting for his call. At 9:37 p.m. Dizon was then intercepted communicating with Gladue about arranging a meeting location. [ 20 ] Video from the 133 Market Avenue suite on this date showed Dizon left the stash house at 10:03 p.m. in possession of cocaine.

A meeting with Gladue was confirmed to have occurred at 10:16 p.m. where the transaction was presumably completed. [ 21 ] June 26, 2013 is the first instance where the accused is seen to attend the stash house unaccompanied. Crown counsel pointed out that there was often in excess of $100,000 worth of cocaine being kept in the suite at any given moment, which the accused was being entrusted with.

It is suggested by Crown counsel this shows the accused had unfettered access to the drugs and possessed a significant level of trust within the organization. [ 22 ] At about 10:00 a.m. on this day Dizon was observed in the stash suite cutting and weighing cocaine. He then took what is believed to be a quarter kilogram of cocaine and placed it into a shoe box which he then placed into the hallway closet.

Throughout the investigation, the shoe rack in the hallway closet appeared to be the place where the drugs in the suite were often stored by this group. [ 23 ] It was at 4:33 p.m. that the accused was observed to enter the suite, where he picked up the shoe box and looked at its contents before leaving with it. Crown counsel points out that there were no communications intercepted that day advising the accused where the

cocaine was being stored, leaving the inference that PGP must have been utilized to convey that message. [ 24 ] On July 4, 2013 a call was received by Singh at 6:54 p.m. from an unknown male expressing concern about the quality of the cocaine he had been receiving. About eight minutes later the accused, Singh and Dizon were seen to enter the Market Avenue stash suite. They brought out a scale and a quantity of cocaine that was believed to be about a half kilogram in weight.

All three of these individuals were then observed to be visually inspecting and smelling the cocaine. [ 25 ] Later that evening Singh was intercepted speaking with the unknown male during which time he essentially confirmed the cocaine was not good and asked that he wait until the new supply arrived. The three males remained in the suite weighing the cocaine into one ounce portions before placing it back into the hallway closet. [ 26 ] After the three had left the suite, police covertly entered the residence and located two Ziploc baggies containing cocaine in the hallway closet.

Underneath the bathroom sink they also observed a scale and Tupperware containers that were contaminated with cocaine residue. [ 27 ] Crown counsel referenced a call from the accused to Singh that occurred on July 8, 2013 as confirming the use of some other device by this group when “private matters” were to be discussed. [ 28 ] Also on July 8, 2013 police surveillance observed Tim Fuller (“Fuller”) fly into Winnipeg from Vancouver.

Fuller was described as a drug courier for Baldovi and on a number of occasions during this investigation police were able to covertly enter into his luggage revealing the presence of multiple kilogram bricks of cocaine upon his arrival that was replaced by large amounts of Canadian currency on his return flight to Vancouver. [ 29 ] From the airport, Fuller checked into the Fort Garry Hotel and soon after police surveillance documented Dizon arriving at the hotel and attending to Fuller’s room.

From there Dizon was observed to return back to the Market Avenue address and was now carrying a black bag that police had earlier documented in the luggage of Fuller when he landed in Winnipeg. [ 30 ] Later that same day the accused, Singh and Dizon were in the Market Avenue suite and the video captured them holding a tin box that had also been earlier documented in the luggage of Fuller. From within that container, they removed the plastic that was encasing what police believed to be bricks of cocaine.

Once that task was completed the accused was observed to be seated on the floor of the bathroom breaking up the brick of cocaine, weighing it and apportioning it into packages. [ 31 ] At 8:00 p.m. all three males are seen to exit the suite with Singh in possession of a white garbage bag that contained the plastic wrapping that had encased the cocaine. Once outside of the block, Singh was observed to throw the wrapping into the garbage bin at the rear of the complex. [ 32 ] Police attended to this location and at 8:50 p.m. seized the white garbage bag that Singh had been observed to discard.

The bag was identified as having an odour of cocaine on it and within it was plastic wrapping that police suggest is consistent with wrapping from kilogram size bricks of cocaine. Also located in that bag was the tin container that had been seen in Fuller’s luggage when he arrived into Winnipeg.

A number of finger prints were lifted from the plastic wrapping that was seized and two of those prints came back as a positive match with those of the accused. [ 33 ] Later that same evening police covertly entered the Market Avenue suite and noted various items of interest underneath the bathroom sink that included a scale. On a shelf in the closet police open a shoe box and observed that it contained a quantity of cocaine.

There were two additional Ziploc baggies located that police estimated each contained a half kilogram of cocaine. [ 34 ] On July 12, 2013 police observed Cara Smith (“Smith”) arrive in Winnipeg. She arrived from Vancouver and had been previously identified by police as another drug courier was working for Baldovi.

On this occasion police were unable to covertly enter her luggage as they were between authorizations permitting that to occur. [ 35 ] Very soon after she arrived, surveillance observed her to meet with Dizon and Singh’s brother, which was the normal process that police had documented on her prior visits to Winnipeg. After the meeting Dizon travelled directly back to the Market Avenue suite and was noted to carry a bag into the suite. From within that bag police observed him to remove what appeared to be a kilogram brick of cocaine which he then placed into a hallway closet shoe organizer.

A subsequent covert entry into the suite by police confirmed the presence of two one kilogram bricks of cocaine that were vacuum sealed, in the shoe organizer located in the hallway closet. [ 36 ] On July 16, 2013 the accused attended to into the Market Avenue suite alone. Once inside he attended to the hallway closet and retrieved the two bricks of cocaine that the police had documented on their last covert entry.

He then began to cut, weigh out and package the bricks of cocaine into quarter kilogram bags in the bathroom area. [ 37 ] While he was undertaking this task Dizon and Oliver Banayos (“Banayos”) also attended the suite and were observed to be standing in the doorway of the bathroom while the accused was cutting the cocaine. Once he finished processing the cocaine, the accused placed four of the eight quarter kilogram bags into a shoe box that was then placed into the closet hallway.

The remaining four bags were put into a white grocery bag that was also placed into the same hallway closet. [ 38 ] The court was advised that two events of significance occurred on July 24, 2013. [ 39 ] The first event involved an intercepted communication from Gladue to the accused asking if “this guy” is back. The accused confirmed the guy was back and that he will have him call. About four hours later a series of text communications were intercepted between Dizon and Gladue in which Dizon advised that he is waiting to hear from someone that he believed would occur that day.

The Crown suggests this shows that Dizon is unable to proceed with any deals without first receiving instructions, as was the case in the prior contact between these two individuals. [ 40 ] A couple of hours later the accused was intercepted calling Jasdeep Warraich (“Warraich”) and explaining the guy was begging

and very anxious about buying, which the Crown suggests was evident by Gladue’s repeated calls. Warraich indicated that he was unable to help at that time and by the end of their conversation the accused appeared to indicate that he would pick up the cocaine and drop it off himself. [ 41 ] The second significant event from this day was the police observations of the accused meeting directly with the courier, Vanessa Gillies (“Gillies”). The Crown suggests that this shows the level of trust given to the accused and is an indicator of the knowledge that he has of the overall organization.

His meeting with the courier, the Crown suggests, is not something that an individual at the lower level of an organization would be permitted to do. [ 42 ] Gillies had been identified as a drug courier operating out of Toronto and on this date was the subject of surveillance by the Winnipeg Police as she checked into the Best Western Hotel. Soon after doing so, the accused was observed to drive into the hotel parking lot with Singh as a passenger. The accused got out of his vehicle, attended into the hotel and moments later was observed to exit in the company of a co-accused, now in possession of bag.

A short time later Gillies was seen to depart the hotel carrying a green bag that the co-accused had in his possession when he attended to the suite of Gillies. [ 43 ] The accused and Singh left the area of the Best Western Hotel and travelled to an apartment block on Ste. Anne’s Road. Police were aware that Singh resided in that block and were also aware that his suite was being used as a money stash location for this organization. With that prior knowledge police had covertly installed a video and audio probe in the suite pursuant to a judicial authorization.

On this particular day the video probe was not working but the audio probe was and picked up the conversation occurring amongst the group. [ 44 ] From within the suite, the accused, Singh and Warraich were heard discussing the cocaine they had obtained and identified it as having come from Toronto, which was the home base of Gillies. The conversation remained focussed on the quantity of cocaine they were in possession of, its wrapping and weight.

There was discussion about the use of an adulterant on the cocaine and at one point the accused was heard to be directing Warraich on who he should be calling about the sale of the cocaine. The entirety of this conversation was consistent with these individuals having just met the courier and making arrangements to prepare the cocaine for resale. [ 45 ] On August 8, 2013 Warraich was intercepted speaking with an unknown male about how much money he had before advising him that he would check back shortly.

About ninety minutes later Dizon contacted this same male to tell him that he would be picking up the files which was clarified during the conversation to mean money. [ 46 ] Dizon then appeared to experience some difficulties with re-contacting this male and sought the assistance of Warraich who was able to contact the male. Eventually arrangements were made by Dizon to attend to the residence of the male to pick up the money. During a communication that occurred prior to Dizon attending to the home, the male asked him if he could give back a little bit, referencing the cocaine that he was buying.

Dizon advised the male that he would have to speak to “buddy” about that and when told by the male that he has had some difficulty in doing so, Dizon indicated that he would message him. [ 47 ] Within six minutes of that conversation the accused was intercepted speaking with this unknown male about his request to return some of the cocaine. The matter was ultimately resolved with the accused cutting the price in return for this male taking the entirety of the cocaine he had originally requested.

The price was discussed and based on the figures used the Crown suggests those were consistent with the purchase of a kilogram of cocaine. What became apparent during this conversation was that there had been previous transactions of this nature that have occurred between the two of them. The Crown suggests this shows that the accused and this group were dealing with the sale of large quantities of cocaine. [ 48 ] On September 19 & 20, 2013 there were a series of communications that were initiated by the accused asking Gladue whether he had “paper” for him.

A meeting was agreed upon and what then occurs is an example of how surveillance conscious the accused was when he was conducting his business. As he approached the meet location he noted the presence of numerous police and advised Gladue of that observation. Rather than cancel the meeting, the accused proposed a new meet location and proceeded to that area in order to complete the transaction. [ 49 ] In August 2013 there were a number of texts intercepted between Singh and a male identified as Ted Mantas (“Mantas”).

According to Crown counsel Mantas had been identified by police as someone who was supplying guns for sale to the Singh organization. He was the registered owner of twenty handguns and when Project Sideshow came to a close he no longer have any of those guns in his possession. A number of them where located during the execution of a search warrant at the residence of an individual identified by police as being a member of a local street gang. [ 50 ] The texts between Singh and Mantas began in August and continued throughout the month and into September.

The contents of those exchanges were about guns and in one conversation Mantas confirms for Singh that it was a model VZ58 that he had sold to him. Singh was then intercepted texting John Amos, who is a reputed drug dealer, indicating VZ58. [ 51 ] In mid August there were a series of texts between Singh and Mantas discussing the purchase of three guns and a price for those guns was quoted by Mantas.

Those conversations continued into September with Singh continuing to confirm details about the guns including whether the guns were boxed and new. [ 52 ] The direct involvement of the accused in these gun transactions occurred on September 27, 2013 when he was contacted by Gavin Chubb (“Chubb”). During that conversation Chubb expressed an interest in buying a handgun and the accused responded that he would speak to his buddy about that request. A few minutes later the Crown suggests that, based on the evidence, it is the accused who contacts Chubb using the cell phone of Singh.

In that conversation, the accused advised Chubb they had a semi automatic rifle for sale which he declined to purchase. He again reiterated a desire for a hand gun and expressed an interest with the offer by the accused that he may be able to obtain a forty-five calibre handgun. In this regard it was Singh who then texted Mantas about the gun only to learn that he no longer possessed them. [ 53 ] Police had previously noted on video what they believe to be a rifle in the Market Avenue suite and on October 23, 2013 a covert entry was made to the suite to follow up on that observation.

In the hallway closet area they did locate and document the presence

of a black assault rifle that had VZ58 stamped on the pistol grip. [ 54 ] Police noted three occasions where Dizon was observed to pass off weapons to buyers. On one of those occasions the buyer was immediately arrested by police and the guns seized while the other two instances were captured on video. On take down day police located three loaded firearms in Dizon’s suite. [ 55 ] On October 15, 2013 the accused was intercepted speaking with an unknown male and advised him that someone would get hold of him soon. One hour later Dizon was intercepted communicating with this unknown male about setting up a meet.

Within a few minutes of that call ending the accused contacted the unknown male to check and see if someone had contacted him. [ 56 ] Text communications between Dizon and the male continued that evening and at 8:50 p.m. the male advised Dizon that he was on his way to the previously agreed meet location. Soon thereafter, at 9:02 p.m., the male advised Dizon that he had arrived at the meet location. [ 57 ] After having received the text from the male indicating that he was on his way, Dizon was seen to enter the bathroom at the Market Avenue suite at 8:56 p.m., in possession of bag and a scale.

He proceeded to weigh out five individual bags each containing about one ounce of cocaine. He placed one of the bags into a shoe box in the hallway closet and the remaining four baggies were placed into another bag. At 9:05 p.m. Dizon was observed to leave the suite with the bag containing the four ounces of cocaine and returned back into the suite empty handed at 9:06 p.m. [ 58 ] A few minutes later Dizon was intercepted texting the male asking if he was supposed to have been provided money in exchange for the drugs.

Four minutes after that text was sent, the accused was intercepted calling the unknown male and asking why he did not provide the money to Dizon. The male provided an explanation as to what had happened and when asked to return to the meet location to pay Dizon, the male advised he was no longer in the area. [ 59 ] The Crown suggests that this shows the accused involvement with initiating the sale and then following up when payment was not received. [ 60 ] On October 18, 2013 the unknown male contacted the accused and they discussed a meeting in order for payment to be made for the drugs previously delivered.

The next day Dizon and the unknown male arranged to meet in order to obtain the money for the previous sale. [ 61 ] To show the connection that existed between the different cells, Crown counsel recited a series of intercepted communications that occurred on October 31, 2013 between the accused and Banayos. The context of those communications was the accused advising Banayos that CBC National was doing a report on the use of ATM machines by criminals. [ 62 ] On November 1, 2013 the male from the previous transaction sent a text to the accused asking if his buddy can text him, presumably to arrange a drug buy.

The accused contacted Singh and sought his assistance with notifying Dizon of the males desire to speak with him. The accused then exchanged a series of texts with this male inquiring as to whether he has begun to collect the money yet. [ 63 ] Singh was then intercepted communicating with Dizon about the male trying to reach him about a “haircut”. Ten minutes later Dizon was intercepted communicating with the male and indicated to him that he would be free in about an hour.

A little later Dizon again texted the male, this time advising him that he is waiting to hear how many tickets he is to give to him. [ 64 ] Later that evening the accused called Singh asking if he had spoken to Dizon as he was getting calls from this male. Eventually Dizon did communicate further with this male at 9:00 p.m. and a meet location was arranged. [ 65 ] At 9:18 p.m. Dizon was observed to go into the bathroom holding a Tupperware container and although the bathroom camera was not operating that day, it is presumed he went there to weigh out the cocaine.

Soon thereafter he was seen to leave the suite with something under his sweater and returned very quickly with nothing no longer noted under his shirt. [ 66 ] The Crown suggests that this is another example of the accused directing the completion of another drug deal. [ 67 ] That was the last transaction related to the court before the accused was arrested on February 5, 2014. During the course of being interviewed by police the accused initially denied ever being at either the Ste. Anne’s Road location or the Market Avenue suite.

Police later played snippets of the surveillance video they had at which time the accused commented that no one directed him to do the things on the video. CRIMINAL RECORD [ 68 ] The criminal record of the accused was filed at Tab 4 of the Crown’s Book of Materials. A review of that record shows two entry dates with the following convictions having been registered: June 17, 2004 Fail to Comply with condition (TIC 1 month) 1 year condition discharge of a recognizance (x3) Utter Threats (x2) Concurrent disposition

Assault (DV) Concurrent disposition February 12, 2008 Possession for the Purpose of Trafficking 41 months incarceration followed by a (Cocaine) 10 year weapons prohibition [ 69 ] Also included with the record is the transcript of proceedings containing the submissions that were made to the court by counsel on February 12, 2008. CROWN POSITION [ 70 ] The Crown suggests that they have a strong case against this accused.

He was captured on video handling what they were able to confirm to be cocaine through entries made to the courier’s luggage as well as from covert entries into the Market Avenue stash location. [ 71 ] Crown counsel suggests the evidence shows this group handled numerous kilograms of cocaine and based on the intercepted communication they have presented to the court, it should be evident that this accused was directing Dizon on the sale of the cocaine. [ 72 ] The court was advised of a previous drug conviction of this accused.

That arose from the execution of a CDSA search warrant that resulted in police locating or seizing 12.63 ounces of crack cocaine as well as $12,870 in Canadian currency from a residence. At sentencing, both counsel put forth a joint recommendation that was accepted by the court. [ 73 ] That conviction came after a series of convictions that were entered on June 17, 2004 which included three convictions for breaching the conditions of a recognizance.

Those entries, the Crown suggests, should trouble the court as it pertains to his ability to comply with any type of release order. [ 74 ] A further concern raised by Crown counsel comes from a series of intercepted communications (Tab 27, Crown Book of Materials) between the accused and an individual identified as Julian Ramkaran (“Ramkaran”).

The Crown suggests that a review of those communications shows the accused was aware Ramkaran was violating his parole conditions and that he was prepared to assist him by providing false information to the National Parole Board on the issue of employment. [ 75 ] Issues pertaining to the accused’s own behavior when he was previously incarcerated on his federal sentence were presented for the courts consideration. Records indicated that he incurred various institutional violations that ultimately led to him being denied day parole at the first instance.

With respect to his index offence, the accused admitted that he was not simply stashing the drugs but rather he was actively selling them and had others assisting him with selling them. [ 76 ] The Crown peripherally reviewed a number of the previous decisions on others arrested in this project and noted a distinguishing factor in this case being not only the existence of a prior criminal record but also the existence of a prior related criminal record. [ 77 ] Even in the face of the argument relating to the reasonable apprehension of bias that has been raised by multiple counsel in their submissions, the Crown suggests that the bail plan put forth by the accused is insufficient.

She suggests that the accused is unable to meet his burden on both the secondary and tertiary grounds and his detention ought to continue on those grounds.

DEFENCE POSITION [ 78 ] It is the position of defence counsel that on the basis of the strong bail plan being put forward, the conditions proposed not only satisfy the onus that is on the accused in these proceedings but also addresses the concerns that arise in this case. [ 79 ] The essence of bail plan being proposed is the posting of $30,000 in the form of a cash bail along with a surety in the amount of $200,000 that is anticipated to be posted by either of his parents.

Those would be in addition to accused entering into a recognizance in the amount of $50,000. [ 80 ] Should he be released back into the community it is his intention to return to his parents home on Red River Drive here in the City of Winnipeg and he will abide by whatever conditions the court would see as being necessary.

A number of suggested conditions are set out in the materials of the accused but counsel was clear that the accused would abide by any additional conditions imposed by the court. [ 81 ] In terms of the background I was advised the accused was born and raised in Winnipeg and is currently twenty-eight years of age.

At the time of his arrest he was residing in the family home and as noted that is where he proposes to return to should he be released. [ 82 ] Upon his release after serving his federal term of imprisonment he did follow through with his previously stated desire and enrolled in university for a period of time. However he elected to leave school as he decided to become involved with his father in the construction business.

[83] In order to address a missing link in his father’s business the accused formulated a business plan and began to execute that planthrough the incorporation of Titan Hauling. That business opportunity still remains for him, as is the offer of an additional full-timeemployment opportunity at a local Esso station. That has been confirmed by way of a letter from Mr.

Rakesh Sharma who was presentfor the submissions made by counsel. [84] During the entirety of the submissions by counsel there were a number of people who attended in support of the accused thatincluded both of his parents, his sister and her boyfriend. There are also letters of support from other community members that were filedin this Application. [85] Counsel acknowledged that the case put forth by the Crown is, on a prima facie basis, a strong case.

That being said, counseloffered the accused is not really in a position to assess that strength as they have not been given access to the Information To Obtain(“ITO”) from the various judicial orders. Without those ITO’s counsel suggests they cannot properly examine the police conduct todetermine if those orders were properly issued. [86] With that defence counsel emphasized that there are triable issues that may impact on the Crown’s ability to successfullyprosecute this case.

Although choosing not to go into a great deal of detail, defence counsel did raise the issue of potential apprehensionof bias that has been argued by other counsel in previous release Applications this court has heard from this Project.

In this regardcounsel suggested that if their argument is successful the remedy to be sought could include a judicial stay of proceedings, pursuant toeither section 24(1) of the Charter, or perhaps the exclusion of certain evidence pursuant to section 24(2). [87] Another potential issue to be explored during the trial process is whether the accused’s right to silence was breached by policeupon his arrest.

The significance of this being that he was interviewed by police and those interviews were used by the voice recognitionexpert to formulate an opinion on whose voice was heard in certain intercepted communications. Defence counsel points out that if thecontent from those interviews is excluded, the opinion of the voice recognition expert may be compromised and of no weight. This couldthen raise serious issues with the Crown case on the weapons offences as defence counsel suggest there is really one phone call that theCrown relies upon to prove the involvement of the accused in that conspiracy.

A further concern identified is that the call beingreferenced was not made by the accused using his own phone but rather the Crown suggests it is the voice of the accused that wasintercepted making the particular call from the phone of his co-accused, Singh. [88] With respect to the secondary ground, defence counsel asks the court to consider what he terms the accused’s relative shortperiod of involvement in the offences before the court.

He suggests the evidence supports the contention that this accused was broughtinto the offences before the court by Singh and his client was really doing the bidding of this co-accused during those calls that wereintercepted.

His short period of involvement should be considered in the analysis of the secondary ground concerns and support a findingthat he was not deeply entrenched in the drug subculture, which was an identified risk by the court in the Pearson case. [89] A secondary issue identified by the court in Pearson is the general concern that those involved in drug trafficking offences oftenface a real temptation to return to this lucrative type of work. Counsel suggests this does not exist for the accused given the business planthat had created as well as the offer of full-time employment that was earlier referenced.

Both of these would provide the accused withsufficient financial returns that should lead the court to find the need for the accused to return to the drug trade is lessened. [90] As for the tertiary ground counsel reminds the court that it is to be used in the rarest of cases and only when necessary tomaintain confidence in the administration of justice. Defence counsel suggests that drug trafficking cases come before the court everyday and those accused do get released.

Counsel acknowledged that the magnitude of the case before the court can be overwhelming asthe Crown has been able to show the operation of a large network. However the fact that is now before the court cannot inflate theactions of this particular accused. With that, counsel suggests that this case does not rise to the level contemplated in the tertiary groundanalysis. [91] In conclusion counsel advanced the presence of a strong prima facie case is not an opportunity for the court to commence thejail sentence that will flow from this case.

The accused is still cloaked with the presumption of innocence and pursuant to the CanadianCharter of Rights and Freedoms is entitled to reasonable bail. THE LAW [92] The case for the Crown at this stage of the proceedings contains a serious set of allegations that alleges the accused beinginvolved in the trafficking of multiple kilograms of cocaine as well as conspiring to sell firearms. [93] At the outset I want to acknowledge that despite the serious nature of the allegations before the court, the accused still remainscloaked with the presumption of innocence, as is guaranteed by

section 11(

d) of the Charter. In addition the accused is not to be deniedreasonable bail without just cause, as is guaranteed by

section 11(

e) of the Charter. [R. v. Pearson, (SCC), [1992] 3S.C.R. 665]. [94] Section 515(10) of the Criminal Code of Canada sets out what would constitute just cause for the continued detention of anindividual alleged to have committed a criminal offence and reads as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [95] As was acknowledged by defence counsel during his submission to the court, it is his client who has the onus to satisfy thecourt that he ought to be granted a form of judicial interim release, as is set out in s. 515(6)(

d) of the Criminal Code of Canada. [96] I have taken the opportunity to read the cases that have been filed by counsel and note that with respect to those decisions thatdealt with others arrested in Project Sideshow, none of those accused presented with a prior criminal record which is a significantdistinguishing factor for this court to consider. [97] Trafficking related offences present their own set of unique considerations in the context of an Application for judicial interimrelease. In this regard the Supreme Court of Canada case of R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665 (Excerpt, Tab 1Crown Casebook) presented some insight into the considerations that should be in the mind of the court. [98] Although Pearson was a case that deal with the constitutionality of s. 515(6)(d), the court did spend a great deal of timeexamining the rationale behind the need for a special set of bail rules for individuals who are charged with specific offences, includingthe distribution of narcotics. [99] One of the specific concerns identified by the court was the fact that narcotic offences did not seem to be committedspontaneously and the court commented on that issue as following @ p. 37: “Most offences are not committed systematically.

By contrast, trafficking in narcotics occurs systematically, usually within a highlysophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender tocontinue criminal behavior even after arrest and release on bail. In these circumstances, the normal process of arrest and bail willnormally not be effective in bringing an end to criminal behavior.” [100] That is essentially the position that Crown counsel took during the course of her submissions to the court.

She suggests theevidence shows this accused was a high level drug trafficker within the Baljinder Singh crime group.

She offers the accused was fullyentrenched in the drug subculture to the point that it became his life and as such she opines the accused continues to pose a significantrisk to return back into that lifestyle and will commit further criminal offences should he be released from custody. [101] Although the Supreme Court of Canada recognized the need for a special set of rules, the court did not go so far as to override thegeneral principles that an accused person is presumed innocent and entitled to reasonable bail absent just cause being shown.

In otherwords the court did not go so far as to suggest that those charged, as is this accused, with trafficking offences were not and could not becandidates for release.

The courts adjudication of these matters will and must continue to be based on all of the circumstances of theoffence as well as the background of the individual accused person. [102] That being said, it is clear to me that denial will occur where the accused cannot put forth a plan that satisfies a court that he willattend court, that his continued detention is not required to prevent the continuation of further offences or that the public confidence inthe administration of justice would be shaken by the release of an accused person.

[103] With respect to the continued detention of an accused person on what is referenced as the tertiary ground (s. 515(10)(

c) ofCriminal Code of Canada), the leading case is that of R. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309, a decision of the SupremeCourt of Canada. Although that case was once again a challenge to the constitutionality of the section, the Supreme Court, in a five tofour split, upheld the

section and proceeded to delineate the applicability of this

section of the Criminal Code of Canada. [104] The Hall case was premised on a very serious set of facts where the accused was alleged to have inflicted 37 separate slashwounds to the deceased, including cutting her neck to the vertebrae, in an attempt to essentially to decapitate her. At the first instance bailhearing, the application for Judicial Interim Release was denied on the third (“tertiary”) ground in order to maintain confidence in theadministration of justice and that decision was upheld on a Superior Court Review. [105] The subsequent appeal to the Supreme Court of Canada was on the basis that detention pursuant to section 515(10)(

c) wasunconstitutional, violating both the presumption of innocence and the right to not to be denied reasonable bail except for just cause.

Aftera thorough analysis the Supreme Court of Canada made the following observation at paragraph 25: “…it may be necessary to the proper functioning of the bail system…to deny bail even where there is no risk the accused will not attendtrial or may re-offend or interfere with the administration of justice.” [106] The court recognized that the denial of bail in order to maintain confidence in the administration of justice was a viable andseparate basis that is contemplated by section 515(10)(c).

That being said, the court emphasized that detention on this basis is only to beon a narrow set of circumstances that are to be considered in light of the four factors that are set by Parliament. [107] The court was clear that the continued detention of an accused person under this subsection of the Criminal Code of Canada mustbe necessary (emphasis added) to maintain confidence in the administration of justice. The direction to the courts is that they must lookto all of the circumstances, particularly the four specified factors set out in the section.

Furthermore the assessment must be done throughthe eyes of a reasonable person who “is one properly informed about the philosophy of the legislative provisions, Charter values and theactual circumstances of the case.”[R. v. Nguyen (1997), 119 C.C.C. (3d) @ p. 274] [108] In the case of R. v. Blind, (SK CA), [1999] S.J. No. 597, Justice Jackson on behalf of the SaskatchewanCourt of Appeal noted the following at paragraph 13: “the structure of the subsection and the use of the words ‘any other just cause’ requires the court to find a ‘just cause’ other than thosementioned in ss. 515(10)(a)(

b) and (c), just cause may be in the need to maintain confidence in the administration of justice.” [109] The Court of Appeal suggested that something more than just the four enunciated factors must be present in order for a court toinvoke this ground as a basis for detention. In other words the court must go beyond the circumstances of the case at bar and ask, isdetention necessary in order to maintain confidence in the administration of justice.

ANALYSIS [110] Before setting out my reasons, I want to thank those individuals who presented themselves in support of the accused now beforethe court. [111] Much of the initial argument of both counsel centred on how the actions of this accused are to be categorized by the court. Crowncounsel takes the position that the evidence establishes this accused as being a high level or “upper level” drug trafficker.

Defencecounsel challenged that assertion and suggested that based on the opinion prepared by Sergeant Blake Wawryk (Tab 9, Crown Book ofMaterials) the evidence presented might establish, at best, the accused was a mid-level drug trafficker and he may in fact exhibit traits ofbeing a low level trafficker. [112] Quite frankly, based on the evidence presented, I find that it would be difficult for a court to conclude the alleged involvement ofthis accused is solely on the basis of him being a low level trafficker.

That being said, that is an avenue that I need not go down for thepurposes of this Application as it will be for a trier of fact to determine, at a full hearing, should the accused be convicted and present for

sentencing. [ 113 ] In addition it is also difficult for this court to accept that this is accused is comparable to any of the other accused as each present with different levels of involvement and with different types of backgrounds. Suffice to say the alleged involvement of this accused presents as serious given the evidence showing that he handled multiple kilograms of cocaine and conspired to traffic in firearms. [ 114 ] What I can say is that the alleged involvement of the accused does not rise to the level of Mr Philip Nguyen (“Nguyen”) whose Application for release was denied by me back in April 2014.

The evidence presented showed that Nguyen was involved in excess of twenty drug transactions over a fifteen month period of time. His home was searched at the time of his arrest and police recovered a quantity of narcotics and other drug paraphernalia. With that I do note there were no allegations of him being involved in the sale of any firearms. [ 115 ] My conclusion in that Application for release was that based on the evidence presented, Mr.

Nguyen was well entrenched in the drug subculture such that he continued to pose a substantial risk to reoffend and furthermore that his release back into the community would undermine the public confidence in the administration of justice. [ 116 ] The suggestion by defence counsel that the accused was family to Singh is a factor the court ought to consider on the issue of being a trusted member of the particular drug organization is in my view irrelevant.

It is his direct actions that have to be considered and what I am prepared to accept is that he may have been acting at the behest of Singh during certain periods of his involvement but there is also ample evidence presented showing that he had access to large quantities of cocaine, although unfettered access may be too strong. [ 117 ] There was also evidence garnered through intercepted communications of the accused being contacted directly about the sale of cocaine as well as being directly involved in other sales that were occurring.

There was also an instance shown where he attended to meet with the drug courier, an activity that was seen to be regularly undertaken by Nguyen and Dizon. [ 118 ] It is these actions that must be examined and they support the inference that he was a trusted member of the Baljinder Singh group and certainly well entrenched in the activities of that group.

The fact that he was family does not in my view diminish his role as a trusted member. [ 119 ] The use of PGP is an interesting issue given by its very nature there is nothing that can be put before the court showing what it is that is alleged to have been discussed. Suffice to say there were various tidbits of information obtained from the intercepted communications that appear to support the use of such a device by these individuals that would go to the level of sophistication.

That coupled with the demonstrated awareness by the accused of actual police surveillance show the efforts he made to avoid detection. [ 120 ] The bail plan that has been put forward is at first blush strong and contains a number of financial commitments from individuals, all of which is geared towards dissuading the accused from becoming re-involved in further criminal activity. That plan has to be examined in the context of this accused and in consideration of the fact that he has a prior related criminal record.

PRIMARY GROUND [ 121 ] The primary ground was not seriously advanced by the Crown as a ground for detention. [ 122 ] That being said, the fact the accused was born, raised and has lived his entire life in Winnipeg is a factor the court would have considered in this context. There is also before the court the offer of a significant surety, as well as a cash deposit and the entering of a recognizance by the accused.

Those assurances coupled with the surrender of his passport would, in my view, have adequately addressed any primary ground concerns that may exist. [ 123 ] On that basis I find that the continued detention of the accused on this ground is not warranted.

SECONDARY GROUND [ 124 ] Based on the evidence presented, there was no real challenge by defence counsel to the assertion of the Crown that there exists a strong prima facie case against this accused, at least in the context of the narcotic trafficking charges. The accused was captured on video surveillance handling multiple kilograms of cocaine and was seen processing those bricks, weighing them out and placing them into bags for resale. [ 125 ] There are also numerous communication intercepts that tend to show a degree of involvement in the actual distribution of those drugs.

With that I do acknowledge that if a court were to draw those inferences from the communications there may still be a contest as to the degree of autonomy he may have had in those transactions. [ 126 ] With respect to the allegations of the accused’s involvement in the trafficking of firearms, I am aware that to some degree it will depend on the opinion of the voice recognition expert being accepted by the court. However I do note the two conversations said to have occurred between the accused and Chubb leave very little to the imagination as to the fact that guns were the topic of conversation between them.

The fact they occurred within six minutes of each other and the second call was in response to the queries from the first call will have to be considered by the court. [ 127 ] For the purposes of this Application what cannot be ignored is the documented presence of a loaded firearm in the drug stash suite which had been referenced by a co-accused in communications as being for sale.

This was the same suite this accused frequented and was captured on video processing the cocaine. [ 128 ] Defence counsel did identify two issues of significance, one being the argument pertaining to bias and the second being the voice recognition issues. With that counsel acknowledged that the first issue is complicated and will require a lengthy period of time to litigate. I acknowledge that issue and adopt the comments I have made in prior applications I have heard on this Project that I suspect it will be a difficult issue to see to fruition.

In addition it is important to recognize that the question may come down to whether the orders referenced would have nevertheless issued and I am not sure the remedy will be the same for each of the litigants. [ 129 ] I took the opportunity to review the transcript (Tab 4, Crown Book of Materials) of the sentence hearing on the accused’s conviction for possession of cocaine for the purposes of trafficking.

The amount of cocaine seized was significant and given the large amount of Canadian currency that was ordered forfeited at that hearing, it certainly permits the inference that this was a serious, and perhaps lucrative, business that the accused was engaged in. The length of sentence imposed also demonstrates the seriousness of the offence. [ 130 ] His time in the federal institution did not occur without incident and it was put before the court that his behaviour in the institution resulted in his first application for parole being denied.

With that I do acknowledge that occurred a number of years ago and it is unclear what if any effect that behaviour may have had on the institution as a whole. [ 131 ] I have also given consideration to the intercepted communications between the accused and Julian Ramkaran that occurred in August 2013. There is no doubt that at the time of those communications, the accused was aware that Ramkaran was potentially in violation of his parole conditions and he was prepared to use his position as a business owner to assist that individual to defeat the parole system.

Those conversations certainly raise serious concerns with accused’s own assertions that he is able and willing to abide by court ordered conditions. In that context one cannot ignore his criminal matters that occurred prior to his drug conviction that included three convictions for breaching court orders. [ 132 ] As I indicated at the outset of these reasons, the bail plan put forth is at first blush a strong plan. The offer of the substantial surety and cash deposit is noted as is the offer of employment by a community member.

Of some concern is the fact that the accused’s alleged involvement in the offences before the court occurred while he was resident at home and that seemingly went undetected by his parents who now offer the promise of supervision. That being said, I do note there is no suggestion that they had any involvement or stood by with knowledge of this accused’s actions in the community. [ 133 ] Counsel spoke of a business plan that had been developed by the accused in the early part of 2013 and suggested that could provide him with a substantial return.

That latter part remains unclear but what is evident is that despite the presence of this business plan, the accused chose to become re-involved in the trafficking of narcotics. That action certainly supports the concerns of the Supreme Court of Canada in Pearson that trafficking “is often a business and a way of life”. His efforts to live a law abiding lifestyle, much like

his assertion he made of going to university upon his release from custody were short lived and appear to have fallen to the lucrative nature of trafficking. It is that lure that the Supreme Court of Canada identified as having the power to draw those who have been arrested and released on bail back in. [ 134 ] Even the imposition of lengthy period of incarceration did not have the desired effect of deterring this accused from becoming re- involved.

It may be that he was initially drawn back in by Singh, but the evidence shows that once in, he did so with “both feet”. [ 135 ] Finally, I agree with the suggestion of Crown counsel that there remains a serious question as to whether the accused had actually ceased his involvement in the offences prior to his arrest. Although I do concede the Crown has not presented any further observations of the accused’s alleged involvement after November 2013, I do note the seizure of two note books (Tab 7, Crown Book of Materials) from the accused’s vehicle on take down day.

The contents of those books are described in the narrative report of Detective Bourque and are believed by police to be what are commonly referred to as score sheets, a term that has been commonly referenced in the courts as being a tool of the drug trade. [ 136 ] I have considered the entirety of the submissions and even with the bail plan presented I am unable to conclude that the accused has discharged his onus on the secondary ground. [ 137 ] He has demonstrated a past history of breaching court orders and has not been deterred through the imposition of a lengthy period of incarceration for a similar type of offence.

He presented difficulties while incarcerated and through his communications with Ramkaran, has shown that he is prepared to participate in behaviour that aims to defeat the monitoring system for those out on parole. This leaves the court with serious concern about his willingness to comply with the bail system. [ 138 ] The Crown has presented a case that depicts the accused as becoming fully immersed in narcotic trafficking and perhaps even more importantly, the conspiracy to traffic in firearms.

His lack of concern for general public safety is apparent from his actions and when coupled with my other comments, this leads me to conclude that there is a substantial likelihood this accused would become re- involved in similar criminal behavior and would do so in manner that is dangerous to the general public if he were to be released on a form of judicial Interim release. TERTIARY GROUND [ 139 ] As has been noted earlier, the tertiary ground is to be reserved for the most serious offences where the release of the accused would seriously undermine the public confidence in the administration of justice.

There must be something more than strength in the four enumerated factors in order to ground ones detention on this basis. [ 140 ] Having already determined that the accused’s continued detention is warranted on the secondary ground, there is no need to deal with his continued detention on this ground. [ 141 ] However I will say that had the accused been able to meet his onus on the secondary ground, this is the type of case where his continued detention would be warranted on the tertiary ground.

I say that considering the case before the court that involves the conspiracy to traffic in firearms, the presence of firearms along with my comments under the secondary ground analysis. [ 142 ] I would have concluded that this is one of those cases where a right thinking member of the public who is fully informed of the bail provisions would lose confidence in the administration of justice should this accused be released. CONCLUSION [ 143 ] I am satisfied that the accused has not discharged his onus on the secondary ground and as such his detention will continue on that basis.

“ORIGINAL SIGNED BY:” K. MOAR, P.J.