R. v. Nguyen, 2019 BCPC 348

Citation: R. v. Nguyen 2019 BCPC 348 Date: 20191221 File No: 237745-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYREL HIEU GEORGE MAHONEY NGUYEN aka TYREL QUESNELLE ORAL REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE JUDICIAL JUSTICE CHELLAPPAN Counsel for the Crown: J. Bellows, QC Counsel for the Defendant: H. Patey Place of Hearing: Burnaby , B.C. Date of Hearing: December 21, 2019 Date of Judgment: December 21, 2019

[ 1 ] THE COURT: I have had the occasion to read the materials and case law, and the affidavit of Constable [sic Staff Sergeant] Yanicki, the cases of R. v.

Bhander, as well as the Khun Khun case. [ 2 ] Having heard able submissions on behalf of both Crown as well as defence, this court is unconvinced that there is any merit in defence's request for the detention order to be carried out in a pretrial centre as opposed to the usual practice of being held in a police cell over the weekend prior to being brought before a Provincial Court judge, or a Supreme Court judge, on Monday. [ 3 ] This accused is facing two counts of first degree murder against one Jagvir Singh Malhi and one Randeep Kang on varying dates, as well as two counts of using a firearm and attempting to murder Gary Kang and Camilo Alonso on varying dates. [ 4 ] I have had the benefit of seeing the accused over this video, and it appears to me that he is quite a robust individual with no discernible frailties of body or mind.

There is no evidence in this court of any such frailties. [ 5 ] Defence takes the issue that the RCMP's choice to arrest the accused over the weekend is purportedly along the lines that was suggested in the case of R. v. Bhander , I assume. The suggestion is that the police are able to optimize their resources and undertake various investigative procedures while the accused is held in the RCMP cells. [ 6 ] On the issue of choice of venue of detention, I take the view that this court has no jurisdiction to direct the location of the accused's detention over the weekend.

The Criminal Code provides for detention in either a facility for detention or a police lock-up. In saying so, I am also of the view that I have no jurisdiction to make any recommendations for the venue of detention, save in very limited and exceptional circumstances where failure to do so might result in miscarriage of justice even at this stage.

An obvious example that comes to mind in this regard is where it is shown that the accused has such significant frailties of body or mind that his detention in police cells over the weekend would possibly have a detrimental and prejudicial effect on his right to silence and/or to counsel. There is no such evidence before this court. [ 7 ] The right to counsel arises at the time of arrest and detention, and the courts have held that it is not ordinarily an ongoing right. The cases cited in R. v. Raminder Bhander .

It is also stated by the courts that the state is not obliged, however, to protect an accused from freely choosing to make a statement. Society has an interest in the police uncovering the truth, and they are entitled to employ legitimate means of persuasion to encourage a suspect to speak. This was stated in R. v. Singh , 2007 Supreme Court of Canada 48. For this reason, both at common law and under the Charter , although an accused has a right to remain silent, he or she does not have the right not to be spoken to by police.

Authority for this statement is the case of Singh . [ 8 ] As to Friday arrest and weekend detention in police cells, the trial court in Bhander stated that: ...there was nothing arbitrary or improper about the police proceeding in this manner. The plan was carefully made and executed in the context of a complex investigation for appropriate and sensible investigative reasons. Although it was undoubtedly more convenient from an investigative perspective for Mr.

Bhandher to be detained in police cells, as opposed to a pre-trial centre, as noted in Ashmore such detention is specifically authorized by the provisions of the Criminal Code . [ 9 ] Mr. Justice Charron writing for the majority in Singh stated: Provided that the detainee's rights are adequately protected, including the freedom to choose whether to speak or not, it is in society's interest that the police attempt to tap this valuable source. [ 10 ] And in Bhander, the court, with reference to Friday arrests, made the statement: While a vigorous submission -- -- which was referred to earlier by the defence.

The police were using some incommunicado interrogative schemes. -- this large language underplays the strength of Charter rights, the principles developed by the courts to animate application of Charter rights at trial... [ 11 ] Fundamentally, the accused in this case before me is not prejudiced in any way.

If there is evidence to suggest that by his detention and ordinary course of events over the weekend in a police cell his Charter rights to silence and to counsel and a fair trial, if at all is alleged to be breached, would be a subject matter of remedy at the trial court or appellate courts. [ 12 ] I do not find any merits in the defence request for his detention in the pretrial centre. [ 13 ] I am ordering his detention pursuant to s. 515(11) of the Criminal Code and with conditions not to have any contact or communication, directly or indirectly, with Gary Kang, Camilo Alonso, Amrit Malhi, Joseph Whitlock, Rohit Kumar and Hardil Cheema. [ 14 ] MR.

PATEY: And, Your Worship, sorry to interrupt. It's Mr. Patey here. Nobody asked me, but I'll just note for the record that I do not take issue with any of those no-contact orders. I've reviewed those names with my client, and that is agreeable. [ 15 ] THE COURT: All right. Thank you, Mr. Patey. (REASONS CONCLUDED)