R. v. Nguyen, 2014 MBPC 16

R. v. Nguyen Date: April 28, 2014 Citation No. 2014 MBPC 16 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Anne M. Turner, for the Crown ) - and – ) ) Philip Nguyen ) Daniel A. Wolson, for the Accused ) ) Judgment delivered: ) April 28, 2014 Pursuant to s. 517(1) of the Criminal Code of Canada , the publication or broadcasting of these reasons is prohibited as set out in that section. MOAR, KELLY, P.J. Introduction [ 1 ] Mr. Philip Nguyen brings an Application seeking his judicial interim release on both Criminal Code of Canada and the Controlled Drugs and Substances Act (“CDSA”) charges.

Given the nature of the CDSA charges, it is Mr. Nguyen who has the onus to show why his continued detention is not required. [ 2 ] By way of general background, in the spring of 2012 the Winnipeg Police Service Organized Crime Unit began an investigation that was labeled Project Sideshow. This investigation targeted individuals who police allege were associated with Asian Organized Crime.

In that context police identified two distinct groups or cells who they suggest were transporting multiple kilograms of illicit drugs, including cocaine, into the City of Winnipeg, from both Vancouver, British Columbia and Toronto, Ontario. [ 3 ] Based on the information filed in this Application and the submissions made by Crown counsel, this was an extensive investigation undertaken by the Winnipeg Police Service.

In addition to surveillance and other traditional investigative methods, police obtained a number of judicial authorizations to permit the intercept of private communications; covert entries into residences, hotel rooms and luggage; the installation of video and audio cameras and probes; the use of tracking devices on vehicles; use of pinging for cellular phones; Production Orders as well as Dial Number Recorder Warrants. [ 4 ] 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 many other communications between those under investigation were not captured due to the use of an encryption device known as Pretty Good Privacy (“PGP”). [ 5 ] The last intercept authorization ended on December 31, 2013 and on February 5, 2014 this project was concluded. On that date police executed a number of arrest and Search Warrants, one of which led to the arrest of the accused now before the court, Mr.

Philip Nguyen, (“Nguyen”) at his residence. [ 6 ] It is alleged by the Crown that Nguyen played a major role in what has been described as the Oliver Banayos crime cell. Within that group it is suggested that he had the role of being the main trafficker, the main collector and the main stasher of drugs and

money. Essentially it is alleged that Nguyen was trafficking cocaine at the kilogram level in the City of Winnipeg (“Winnipeg”). [ 7 ] The general pattern noted by police would involve a drug courier driving to Winnipeg from Toronto, Ontario (“Toronto”) and checking into a hotel room. On a number of occasions the hotel room would have been previously booked for that person. Nguyen would then attend to that hotel room where it is alleged that he would receive multiple kilograms of cocaine from the courier in exchange for large amounts of money that were bundled and vacuum sealed.

On occasion there would be multiple visits to the hotel room by Nguyen but in most instances the courier would be in Winnipeg a day or two before flying back to Toronto. [ 8 ] A second pattern noted by police occurred both before a drug courier would arrive in Winnipeg and after the courier had left Winnipeg. During these times Nguyen was observed to attend various locations in Winnipeg where he would be seen to have very short meetings with various individuals.

These meeting locations were very consistent throughout the investigation and it is alleged that these meetings were for the purpose of picking up money from the drug dealers and/or delivering cocaine to these same people. [ 9 ] During the course of this investigation police identified two stash locations that were utilized by Nguyen.

At various points in time, police covertly entered these locales, pursuant to a judicial authorization, and observed large quantities of bundled and vacuum sealed money as well as kilograms of cocaine. [ 10 ] With respect to the couriers, the pattern noted by police was that they would enter a one-way rental contract for a car at the Toronto International Airport. They would then drive to Winnipeg and very soon upon arrival would return that car to the appropriate rental agency at the Winnipeg International Airport.

The courier would then fly back to Toronto, often with large amounts of currency packed in their luggage that police were able to document through the judicial authorizations that permitted covert entry to the luggage. [ 11 ] I will now set out a synopsis of the evidence that the Crown orally adduced at the day-long hearing of this matter. Many of the instances are also detailed in the Crown’s Book of Materials that is labeled as Exhibit S1 in this proceeding.

Evidence [ 12 ] The accused Nguyen first came to the attention of the Winnipeg Police Service on August 3, 2012 when he was observed to meet with an individual by the name of Ron Morrison. Police had received previous information of this meeting, as well as other meetings, occurring between these two individuals and set up surveillance. [ 13 ] A Tracking Warrant had been granted for the vehicle of Nguyen as the Winnipeg Police Service were interested in trying to determine the location of any stash house that was being used by Nguyen.

On August 10, 2012, police were able to confirm that 2 – 128 Smith Street was a residence that Nguyen had access to and was frequenting. A covert camera was installed in the general hallway outside of the suite to permit police to monitor who entered and exited that suite. [ 14 ] On August 14, 2012, police were able to track Nguyen as he left his family home on Dominion Street, attended to 128 Smith Street and then went to the Salisbury House Restaurant located on Notre Dame Avenue.

At that location Nguyen was observed to meet with Ron Morrison and they were seen to exchange bags each had brought into the restaurant. Similar types of transactions were observed to have occurred on August 15, 21 and 27, 2012 and these were described as typical transactions that were very short in duration. [ 15 ] On September 12, 2012, a General Warrant was obtained that permitted police to covertly enter what they came to describe as a stash suite.

Using the hallway camera, police were able to note that except for one occasion, it was only Nguyen who entered that suite and at no time did he ever spend a night in that suite. The rent for the suite was paid in cash each month and although it was rented to an individual by the name of Jason Hall, that person was never actually seen by the property manager. [ 16 ] Various entries were made to the suite by police including one on September 21, 2012 when police entered and observed ( Tab 6, Exhibit B1 ) four ounces of cocaine and packaging material in a black Sentry Safe.

On September 25, 2012, Nguyen was observed to enter the suite with a bag, staying for about fifteen minutes before leaving. Police later entered the suite and this time noted a kilogram of cocaine ( Tab 7, Exhibit B1 ) as well as several empty wrappers that are described as being consistent with the packaging used for kilograms of cocaine. There was also a black bag observed containing used wrappers and some additional loose cocaine within it.

On October 5, 2012, police again entered the suite and this time observed six kilograms of cocaine, a scale and packaging materials, all of which were photographed. ( Tab 8 of Exhibit B1 ).

[ 17 ] The last entry to the suite by police was made on October 31, 2012 at which time they were unable to open the safe. Surveillance conducted that day observed Nguyen leaving his home and going to the Hilton Airport Hotel. He entered the hotel without any bag and was then seen to exit the hotel, go back to his car and retrieve a black bag. Nguyen then waved at a male person that police have identified as David Ly (“Ly”), who retrieved a suitcase from a rental car and also entered the hotel. Both males were observed to enter room 520 and six minutes later Nguyen left the suite with a large black duffle bag.

He went directly to his home address and then to the Smith Street address where he was observed on video to enter suite 2 by using a set of keys. He was observed to have entered the suite with bags before exiting six minutes later, locking the door with keys and having in his possession a backpack and multiple tupperware containers. [ 18 ] Ly was followed by another unit and observed to return his rental car at the Winnipeg Airport before checking in for a flight.

Winnipeg Police were able to contact the security department at Enterprise Car Rentals who advised that David Ly had rented cars on twenty-four separate occasions with fifteen of those being one-way rentals to Winnipeg. In the month of October 2012, Ly was observed to return cars at the Winnipeg International Airport on the 8 th , 20 th and 29 th of that month. [ 19 ] On November 6, 201, Winnipeg Police learned that the safe at 2 -128 Smith Street had been removed.

The tracking device installed on Nguyen’s car led police to 1022 Wilkes Avenue where it was discovered that suite 216 had been rented by an individual named Jason Hale. A covert camera was subsequently installed in the hallway outside of that suite with the permission of building management. [ 20 ] On December 21, 2012, a General Warrant was obtained to permit police to enter the luggage of David Ly surreptitiously.

In addition, another General Warrant was obtained that permitted police to covertly enter the suite located at 216-1022 Wilkes Avenue. [ 21 ] Police continued their investigation and on December 28, 2012 they learned that David Ly was again to be in Winnipeg. Later that day they were notified by the Four Points Sheraton Hotel that Nguyen had rented a room for that evening. [ 22 ] The tracking device on Nguyen’s car showed that his vehicle was at the airport at 715 p.m. and he was then followed to 1022 Wilkes Avenue. He entered the suite with a back pack and a shoulder duffle bag and left the suite at 8:21 p.m.

At 9:04 p.m. police covertly entered the suite and observed four kilograms of cocaine. The luggage of Ly was also covertly entered into after he had checked in for his flight and police observed $160,000.00 in cash that was vacuum sealed and bundled as had been previously seen in this investigation. [ 23 ] On January 18, 2013, police granted a

Part VI Authorization to intercept private communications and immediately set up the lines to permit that. [ 24 ] On January 30, 2013, police intercepted a call between two other identified members of this group discussing what police suggested was a drug deal.

During this call the unrelated arrest of various Rock Machine members by police was also discussed by these two individuals and a subsequent meeting time and location was also set up by these individuals for the next day. [ 25 ] On January 31, 2013, intercepts revealed that Ly was again to arrive in Winnipeg and subsequent surveillance showed that he did arrive at the Hilton Airport Hotel where he and Nguyen entered room 102.

While this meeting was occurring, police covertly entered the Wilkes Avenue suite and observed that there was no cocaine in the suite. [ 26 ] Nguyen left the Hilton Hotel about six minutes after entering, now in possession of a bag that looked to be heavy. From there he attended to the Wilkes Avenue location where the covert camera showed him to enter the suite at about 1:08 p.m. He remained in that suite for six minutes before departing.

Police confirmed that no one else had entered that suite after their covert entry was made and at 1:23 p.m. they again covertly entered the suite and this time observed ( Tab 11, Exhibit B1 ) seven kilograms of cocaine. [ 27 ] Surveillance continued on Nguyen that afternoon during which time he was observed to go to many of his usual locations in Winnipeg for very short meetings with individuals. [ 28 ] On February 13, 2013, intercepts ( Tab 12, Exhibit B1 ) revealed that Ly was again making arrangements to attend Winnipeg.

Upon becoming aware of that information, police covertly entered the Wilkes Avenue suite and photographed ( Tab 13, Exhibit B1 ) the contents of the safe. [ 29 ] On February 14, 2013, Ly arrived in Winnipeg and proceeded to the Hilton Airport Hotel where he and Nguyen had agreed to meet. Prior to Ly’s arrival into Winnipeg, police had obtained a prior authorization permitting the installation of an audio probe into the rented suite of Ly to enable police to intercept any communication that occurred. [ 30 ] Nguyen was observed to carry what appeared to be a heavy bag into the Hilton Hotel at 10:12 a.m.

Police were then able to hear a brief exchange between Ly and Nguyen in which Ly indicates that he already has a ticket for 6:00 p.m. that day. Nguyen is observed to leave the suite and returns back at about 12:22 p.m., this time with a black back pack. [ 31 ] Ly and Nguyen continue to exchange texts throughout the afternoon while Nguyen attended to a number of meetings at his regular locations throughout Winnipeg. After attending these locations, Nguyen was in contact with both Kevin Lui, (“Lui”) and Michael Marks, (“Marks”), both of whom are friends of his.

The communications exchanged spoke of assignments and group projects and included within the texts was a particular sign that police believe indicated a need for help with counting and packaging money. [ 32 ] At 4:27 p.m., Nguyen is observed to attend back to the Hilton Airport Hotel and enter the suite of Ly. A brief conversation is again picked up by the audio probe during which Ly advises he is not going to wait for anymore. What is meant by ‘anymore’ was not expanded upon. [ 33 ] Surveillance showed that Ly remained in the suite throughout the day with no one but Nguyen ever attending.

Ly later attended to the airport and once his luggage was checked in, covert entry by the police revealed that he had $300,000.00 in cash in his suitcase. [ 34 ] On February 26, 2013, Nguyen continued his pattern of attending to very short meetings at various locations in Winnipeg. On this date he called Marks seeking help with an “assignment” and attended to his residence later in the day.

It should be noted that during the entirety of this investigation, police did not ever observe Nguyen to attend to a school, where he may have needed help with an assignment or essay, nor did he ever have a legitimate job. [ 35 ] At 4:26 p.m., police intercepted text messages indicating that Ly was within hours of arriving into Winnipeg. Nguyen, who was at home, was observed to attend the St. Vital Mall where he got into a silver Mercedes car and drove around the mall lot for a couple of minutes.

He then is seen to exit that car now with a plastic bag. [ 36 ] From this location Nguyen then attended directly to the Sandman Hotel and while on route he texted Marks to inquire if he is done the mid-term. The text contained a symbol that police have observed in prior communications between these two individuals. At about 6:00 p.m., Ly is observed to arrive in Winnipeg in a rental car from Ontario. Nguyen is then observed to meet with Ly in the hotel lobby before departing and going to the suite at 1022 Wilkes Avenue. [ 37 ] Police later covertly entered that suite and located seven kilograms of cocaine.

Later that same day a text to Ly was intercepted confirming that the earliest Nguyen would be attending was midnight. At 10:00 p.m. Nguyen received a text from Marks saying that he is done the exam. Nguyen arranged to pick up Marks and at 10:23 p.m. Nguyen texted Ly saying he would be at the hotel in twenty minutes. The tracking device on his vehicle showed that he arrived at the Sandman Hotel at 11:44 p.m.

Ly later left the hotel to board a 5:15 a.m. flight to Toronto and once his luggage was checked in, covert entry showed that there was $210,000.00 in cash within. [ 38 ] On February 28, 2013 there was text communications between Nguyen and a male identified as Colin Agland (“Agland”) agreeing to meet at the Royal Fork Buffet around 2:30 p.m. that day. Nguyen is observed to attend the Wilkes suite at 1:34 p.m. and leaves two minutes later with a back pack and travels directly to the Royal Fork Buffet.

There a male is observed to get into Nguyen’s vehicle and one minute later Nguyen is seen leaving the location without the male. [ 39 ] During the next ten days or so, communications are intercepted which the Crown suggests were drug related. During this period of time Nguyen is seen to continue his pattern of attending various locations throughout Winnipeg for short meetings. He is also observed to attend to Marks residence on a number of occasions while also texting him on other occasions seeking his assistance.

Mixed into this activity are observations of Nguyen continuing to attend the Wilkes Avenue suite during this time.

[ 40 ] On March 12, 2013, police covertly entered the suite at 1032 Wilkes Avenue and observed three kilograms of cocaine in brick form, a quarter kilogram and half kilogram of cocaine in separate baggies as well as a scale and packing materials. [ 41 ] On this same date at 4:20 p.m. there is text communication intercepted between Nguyen and Agland who agree to meet later that evening. Surveillance confirms that they do meet at 9:17 p.m. at the Magic Sushi restaurant. At that location a male is observed to get into Nguyen’s vehicle and after driving a short distance, the male exits the car.

This male who is observed to get out of Nguyen’s car then attends to the Polo Park movie theatre. At about 9:55 p.m. a communication is intercepted and just after 10:00 p.m., Agland is observed to meet with an individual in the lot. There are additional communications that occur where it is suggested that Agland may have shorted the person in the cash he provided. [ 42 ] Covert entry is made into the suite on March 13, 2013 at which time one and three quarters of a kilogram of cocaine is observed ( Tab 15, Exhibit B1 ) as well as $70,000.00 in cash.

Police marked this money covertly prior to leaving the suite. [ 43 ] Between March 14 and 16, 2013, there are numerous communications intercepted between Nguyen and Marks about counting money. [ 44 ] On March 17, 2013, police learn that Ly is going to be in Winnipeg again. Contrary to the usual pattern, on this occasion he is to fly into Winnipeg with a return ticket for the same day back to Toronto. Ly texted Nguyen in the early afternoon and advised that he would be arriving at 2:00 p.m. and leaving at 5:10 p.m. that same day. At about 12:46 p.m.

Nguyen is observed to attend the Wilkes Avenue suite and exiting now with a bag. At 1:44 p.m., Nguyen receives a text from Ly saying he has landed to which he responds and offers to pick him up from the airport. [ 45 ] The tracking device showed that Nguyen did attend the airport and then went to the Clarion Hotel where they stayed for about five minutes. That meeting was not observed by police but a covert entry of the luggage of Ly later that day revealed $350,000.00 in cash contained in vacuum sealed packages ( Tab 16, Exhibit B1 ).

One of those packages was found to be one that police covertly mark when in the Wilkes Avenue suite on March 13, 2013. [ 46 ] On March 27, 2013, texts were intercepted in which Ly advised Nguyen that he would be arriving around midnight that evening. Police covertly entered the suite at Wilkes Avenue while Ly was on his way to Winnipeg and observed about one ounce of cocaine (Tab 17, Exhibit B1) at that time. [ 47 ] Ly arrived in Winnipeg and was observed to attend to room 309 at the Hilton Hotel with a large suitcase.

Text intercepts showed that Nguyen was on his way and at 12:21 a.m. on March 28, 2013, Nguyen was observed to arrive at the Hilton Hotel with a large bag over his shoulder. A video probe, pursuant to an authorization, had previously been installed in room 309, and Nguyen was heard to say that he would return to the hotel at a later time, after which he then went directly to his home address. [ 48 ] Later that day Nguyen was followed to many of his usual locations where short meetings were observed to occur.

Also during the day Nguyen and Marks continually exchange texts and Nguyen eventually went to Marks home for about one hour. While at Marks residence, Nguyen texted Ly ( Tab 19, Exhibit B1 ) and suggested to him that he may need a second suitcase. [ 49 ] At 3:39 p.m., Nguyen attended to room 308 at the Hilton Hotel where his interaction with Ly was captured by the video probe ( Tab 20, Exhibit B1 ) that had been installed in the room. During their interaction, Nguyen is observed to remove a large vacuum sealed bundle of cash from the backpack he had entered the suite with and give it to Ly.

At this point Ly then places that bundle into his own suitcase and at 3:40 p.m. Nguyen is observed to leave the suite with his backpack. Surveillance continues on Ly and at 4:09 p.m. he leaves the suite with all of his belongings. A subsequent entry into the luggage of Ly revealed $276,000.00 in cash. [ 50 ] On April 2, 2013 at 1:30 p.m., Nguyen attended to the Wilkes Avenue suite with a plastic bag where he stayed for about four minutes later before then leaving with a duffle bag. He then traveled directly home before then going to the Fairfield Inn on Ellice Avenue.

While he is coming out of the hotel, Nguyen is observed to be texting and then drives to the airport. There he is observed to pick up a male known as Balchan Sukhdeo (“Sukhdeo”) who places his luggage into the vehicle. They then return to the Fairfield Inn and five minutes later Nguyen is observed to leave.

[ 51 ] On April 8, 2013, Nguyen is intercepted texting Marks inquiring when he will be home. He later attends Marks home and while there Nguyen places a phone call that is intercepted. That call went to voice mail and while the line is still open police can hear Nguyen speaking to Marks and asking that if he comes across a bunch of one hundred dollar bills that they be given to him. [ 52 ] On April 9, 2013, Nguyen is observed to attend the Wilkes Avenue suite where he stayed for about eighteen minutes.

The next day police covertly entered that suite and observed $70,000.00 in cash, about one gram of cocaine and some kilogram wrappers. Later that same evening Nguyen is observed to return to the Wilkes Avenue suite and on the morning of April 11, 2013 police again covertly entered the suite and this time note that there is now $140,000.00 in cash as well as the one gram of cocaine. [ 53 ] On April 12, 2013, the tracking device showed the accused attended back to the Wilkes Avenue suite in the morning before returning back to his home. He then attended to the Fairfield Inn on Ellice Avenue and enters the hotel.

At 2:05 p.m. a rental vehicle with Ontario plates is seen to arrive at this hotel. Nguyen is observed to meet with the driver, who is identified to be Sukhdeo, in the lobby. They then went to a room and minutes later Nguyen is observed leaving the hotel and travelling home.

Police did not possess a General Warrant to enter the luggage of Sukhdeo to confirm whether he left with any money that day. [ 54 ] Of interest, and unrelated to this project, is that on April 27, 2013, Sukhdeo was arrested by the Ontario Provincial Police near Kenora, Ontario in an unrelated matter and in the Ontario rental car police located seven kilograms of cocaine. [ 55 ] Later, at 7:43 p.m. on April 12, 2013, Nguyen is observed to attend the Wilkes Avenue suite with a large bag and remains there for about two minutes.

While there he is observed to place three large vacuum sealed packages of money into the safe. Covert entry is made on April 23, 2013 to the Wilkes Avenue suite and police observed $210,000.00 in cash as well as three kilograms of cocaine in the safe. At 10:58 p.m. that same evening Nguyen is observed to return back to the Wilkes Avenue suite, this time in the company of both Lui and Marks. This was the only time someone other than Nguyen entered that suite.

These individuals are then seen to remove the safe from the suite and take items to Marks residence. [ 56 ] On May 23, 2013, Nguyen is observed to attend to Superstore located on Bison Drive for a short meeting. He then attends back to the Wilkes Avenue suite and covert entry later that day revealed one kilogram of cocaine in the bathroom as well as packaging materials. His pattern of short meetings continues on May 24, 2013 while also texting Marks seeking his assistance.

Nguyen also attended to the Wilkes Avenue suite on this day where he remained for about four minutes before leaving and going to the Safeway parking lot at Pembina Highway and McGillivray Avenue. He remained in the parking lot and surveillance was unable to confirm if he met with anyone at that time. Police later entered the Wilkes Avenue suite and this time there is no cocaine nor any money observed. [ 57 ] After leaving the Safeway location, Nguyen texts Marks and then attends to his residence where he remained for about thirty minutes.

This pattern of texting, attending short meetings and having exchanges with Marks continued for about a week or so. [ 58 ] On June 6, 2013, police intercepted text messages and as a result attended to the Sandman Hotel on Sargeant Avenue where they note Nguyen’s vehicle in the lot. At 3:20 p.m. they observe him in the lobby area of the hotel and police were unable to follow him once he entered the elevator. At 4:42 p.m., police note a vehicle with Ontario plates at the back of the hotel that is driven by an individual identified as Phi Cao (“Cao”).

He is observed to enter the Sandman Hotel with a shoulder bag and a rolling suitcase and goes to the third floor of the hotel. Minutes later, Nguyen is observed to be leaving the elevator with the shoulder bag that Cao had entered with. Nguyen entered into a taxi and went to the Victoria Inn where he is seen to enter the hotel with an unidentified individual, leaving minutes later and returning to his car by taxi. [ 59 ] That afternoon Nguyen is observed to go to many of his usual locations for very short meetings.

Police were not able to set up surveillance on Cao and they cannot say when it is that he left Winnipeg. The Ontario vehicle, however, remained in the parking lot of the Sandman Hotel. [ 60 ] On June 10, 2013 intercepts showed that Ly, who was now working at a car dealership in Toronto, rented a car for Cao for pick up at the Toronto International Airport. On June 11, 2013, Nguyen is observed to attend many of his usual locations for very short meetings.

Police learned that room 209 at the Sandman Hotel had been rented by an individual and later that day Nguyen attends to the hotel where he remained for about two hours. He then went home before going to Marks residence where he stays for an hour before returning back home. At 12:45 a.m. the tracking device shows that Nguyen’s vehicle attended to the Sandman Hotel and remained at that location for about an hour before again going back home.

[ 61 ] Although unable to say what time Cao had arrived into Winnipeg, police did observe him exit the hotel about 12:15 p.m. with a backpack and rolling suitcase. He then went to return the rental car at the airport before returning back to the Sandman Hotel by taxi. There he then gets into the rental vehicle that had been left at the hotel on June 6, 2013 and is last seen leaving Winnipeg and going east. [ 62 ] On June 21, 2013 Nguyen rented a room at the Sandman Hotel and later that day Ly and Cao arrive at that hotel in a rental vehicle from Ontario.

Both individuals went into the hotel before Ly comes back out and returns the rental car at the airport and back to the hotel. Police did not see Nguyen leave the hotel but the tracking device showed he did leave and returned home at 4:10 p.m. that day. From there he went to many of his usual locations for short meetings. Cao and Ly were then observed to leave the hotel and took a taxi to the airport.

Only Cao checked luggage and police could not enter the luggage of Cao as they had not yet obtained a Warrant to do so. [ 63 ] Because of the change in pattern, police obtained a General Warrant to covertly enter the residence at 1188 Dominion Avenue to install surveillance equipment but that was never done. [ 64 ] On July 11, 2013, Cao arrived in Winnipeg in a vehicle that had been rented in Ontario. Nguyen met with him and they went into a room. Nine minutes later Nguyen is observed leaving in possession of a large shoulder bag and goes home.

About ninety minutes later he then returns back to the Sandman Hotel with a backpack before again going back to his own residence. Throughout that evening he is observed to attend many of his usual locations. Cao is seen to check out of the hotel and attends to the airport. This time police did have authorization to enter his luggage but could not get the lock open. [ 65 ] On July 17, 2013 the tracking device showed that Nguyen attended to the Wilkes Avenue suite at 11:34 a.m. and stayed until 11:41 a.m. Later that afternoon, police covertly entered the suite and observe $240,000.00 in cash.

On July 18, 2013, police again enter the suite with the intention to mark the money and saw that the money was no longer there, which surprised the police given the tracking device did not show Nguyen returning to the suite after he had left at 11:41 a.m. the day prior. [ 66 ] On July 19, 2013, Cao flew into Winnipeg and covert entry into his luggage did not reveal any drugs or cash. The tracking device showed that Nguyen went to the Wilkes Avenue suite at 10:47 a.m. and entered with a backpack.

About two minutes later he is observed to leave the suite and attend to meet with other individuals who police allege were involved with this trafficking group. Later in the day Nguyen attends and meets with Cao in his hotel room. Covert audio and video probes pick up Nguyen saying that “it is really bad, I went there and it is gone”. A search of the luggage of Cao showed that he was in possession of $45,000.00 in cash when he left Winnipeg. [ 67 ] Police tried to obtain the video surveillance from the Wilkes Avenue location and learnt that an associate of Nguyen had also tried to do so earlier in the day.

This was the last time that Nguyen ever attended to the Wilkes Avenue location. [ 68 ] On July 28, 2013, Cao rents a vehicle in Toronto and drives to Winnipeg, arriving the next day. He proceeds to rent a room at the Sandman Hotel and soon after Nguyen is seen to attend where he remains for about ten minutes.

Later that afternoon, intercepts show Nguyen texting Liu seeking his assistance and he in fact goes to his residence for about an hour before then returning back to the Sandman Hotel. [ 69 ] After leaving the hotel, Nguyen is observed to attend to many short meetings at his usual locations before going back to Liu’s home. From there he attends to Cao’s room at the Sandman Hotel with a backpack. He stays for a few minutes before leaving the hotel and making a few more stops at usual locations.

Cao is observed to leave his hotel to return the rental car before returning back to the Sandman and he remains for the evening. [ 70 ] On July 30, 2013 around noon, Cao exits his room and attends to Polo Park Shopping Centre. The tracker on Nguyen’s vehicle shows him leaving his home and attending to a parking lot at St. James Street and Ness Avenue. It is assumed he was there to pick up Cao because at 2:23 p.m. police observe Nguyen driving into the Sandman Hotel with Cao as a passenger. They both attend into the hotel and seconds later, Nguyen is seen exiting.

Later that evening Nguyen returned back to the hotel and is seen to go into Cao’s suite before quickly exiting. Cao is later seen to board a flight and a check of his luggage revealed that it contained $400,000.00 in cash. [ 71 ] On August 3, 2013, Cao again rents a car in Toronto, arrives in Winnipeg on the 4th and checks into the Clarion Hotel. The tracking device shows that Nguyen attended to the hotel on that date and stayed for about forty to forty-five minutes before then going back home. From there he begins to visit his usual locations throughout Winnipeg for very short meetings.

At 5:15 p.m. the tracking device shows that Nguyen left his home and went to the Clarion Hotel for about seven minutes. Intercepts by the police show that

Nguyen is texting both Marks and Liu and when he gets no answer he calls Marks and advises he is coming over. Nguyen stayed there for about fifteen minutes and then continued his quick stop meetings that evening. [ 72 ] At 7:00 p.m. Nguyen telephoned Marks and asked if the movie was almost done and is told half way. Nguyen then went to Mark’s residence for about fifteen minutes, then home before going to the Clarion Hotel for about twelve minutes.

On August 5, 2013 Cao leaves Winnipeg but police were unable to gain entry to his luggage. [ 73 ] Cao and Nguyen exchange texts on August 12, 2013 in which Cao advises that he intends to arrive in Winnipeg on August 13, 2013. Nguyen begins his usual visits to various locations in Winnipeg and also attends to Mark’s home on a couple of occasions. At 7:00 p.m. on the 13 th , Cao is seen to arrive at the Sandman Hotel and checks into suite 322. Fifteen minutes later, Nguyen is observed to arrive at the hotel. He attends into the suite of Cao for a short period and then leaves.

Cao is observed to leave the Sandman with a backpack and returns his rental car that he used to get to Winnipeg before returning back to the hotel. [ 74 ] At 12:30 a.m., Nguyen is observed to go from Mark’s home to the Sandman Hotel and is seen on video to enter Cao’s suite. On August 15, 2013, Cao leaves Winnipeg and his luggage is found to have $313,000.00 in cash. [ 75 ] The same pattern continues on August 28, 2013 when Cao and Ly both came to Winnipeg. Nguyen is noted to attend the Clarion Hotel within thirty minutes of their arrival and after meeting in the lobby, all three go up to the suite together.

Ly is later observed to leave the hotel and return the rental car at the airport. He flew out of Winnipeg and a check of his luggage showed it contained $80,000.00 in cash. [ 76 ] Cao remained in Winnipeg during which time Nguyen is observed to leave his home and attend to various locations for short meetings. An intercept of a telephone call by Cao to an unknown female on August 30, 2013 indicated that he anticipated staying until Sunday or Monday to get the job done. Nguyen attended the Clarion Hotel on August 31 and September 1, 2013 for very short periods of time before Cao then left Winnipeg for Toronto.

Police were unable to gain access to his luggage. [ 77 ] The present pattern of Nguyen making a number of visits throughout Winnipeg continued on September 8 and 9, 2013. On September 11, 2013, Nguyen attended to the Fairfield Inn on Ellice Avenue at 6:34 p.m. and it was learnt through intercepts that Cao had arrived in Winnipeg at 6:15 p.m. that day.

No meeting was observed by police but it appeared that Nguyen remained at that hotel for about four minutes. [ 78 ] The pattern of visits continued for Nguyen on September 13 and 18, 2013. [ 79 ] On September 19 th Cao again arrived in Winnipeg and checked into the Victoria Inn for a three night stay. Nguyen subsequently left his home and attended the Victoria Inn, staying for about six minutes, before returning back home. Nguyen was then observed to attend at many of his usual meeting locations before again returning to the Victoria Inn.

From there Nguyen contacted Liu and made arrangements for him to come to meet Nguyen at his home on Dominion Street. [ 80 ] Nguyen then returned back to the Victoria Inn where he stayed for about four minutes. This pattern of behavior is then observed to continue on September 21, 2013 before Cao books a flight to return to Toronto on the 22 nd . [ 81 ] On September 30, 2013 Cao begins his drive to Winnipeg and arrives on October 1, 2013. He checked into the Clarion Hotel and at 5:48 p.m. Nguyen is seen to attend to the Clarion Hotel.

Upon leaving he went directly home before he then begins his pattern of visits while also exchanging text messages with Liu about needing help with an assignment. He attends back and forth to the Clarion Hotel until October 4, 2013 when Cao returns to Toronto. [ 82 ] On October 9 and 10, 2013, Nguyen is observed to attend to his multiple locations throughout Winnipeg and on the 11 th he attends to the Sandman Hotel and rents a room. Cao is then observed to arrive at the hotel and they enter room 320 together.

Prior to this, police were able to install a video probe and at 2:25 p.m. they were able to observe Nguyen remove a large vacuum sealed package of money and place it onto the bed. Later that day he continued his pattern of short visits throughout Winnipeg prior to Cao flying back to Toronto on October 13, 2013. Police did not gain access to his luggage on this occasion.

[ 83 ] On October 16, 2013, police were notified that Cao would be flying into Winnipeg at 6:26 p.m. from Toronto with a return flight booked for 8:00 p.m. that same evening. Cao is observed to arrive, exit the airport and enter the back seat of a car being driven by Nguyen. From the airport, the car travelled to a local Wendy’s Restaurant Drive-thru and then went directly back to the airport. During this entire ride Cao is observed to have remained in the backseat of the car.

After he checked in his luggage police were able to gain access and observed $185,000.00 in cash. [ 84 ] This pattern of Nguyen attending to various locations and also meeting with Liu continued in the late part of October and early part of November 2013. On the 5 th of November 2013, Cao again arrived into Winnipeg but this time checked into the Four Points Sheraton Hotel on Pembina Highway.

During this time Nguyen was never observed to meet with Cao and in fact cell tower information showed that Nguyen was actually in Toronto on this date. [ 85 ] On December 20, 2013 Cao was arrested by Winnipeg Police after a traffic stop. He, at that time, had three cell phones and six kilograms of cocaine in his possession. Given the ongoing investigation he was released from custody. [ 86 ] There no further authorizations to intercept sought after December 31, 2013 and the project came to an end on February 5, 2014.

On that date an Arrest Warrant and Search Warrant were executed on Nguyen at which time police seized two grams of powdered cocaine, two grams of crack cocaine, packaging material, five cell phones, a digital scale and a vacuum sealer. During a conversation with Nguyen, he denied knowing Cao. Crown Position [ 87 ] The Crown suggests the investigation shows that Nguyen was involved in months and months of extreme trafficking in large amounts of cocaine. For him this was his job, it was his livelihood and what he did on a daily basis.

In order to get to this level, Crown counsel suggests that requires a great deal of trust, reliability and a relationship with the group or organization. [ 88 ] With that background the Crown has indicated that it opposes judicial interim release on all three grounds.

On the primary ground the Crown suggests that the potential of a lengthy jail sentence alone has been noted in many cases as a concern and may lead to an accused person perhaps not attending court to deal with the allegations. [ 89 ] With respect to the secondary ground the Crown reminds the court that this was Nguyen’s way of life, this was his livelihood, this was his job and this was his business. He was involved in conducting drug transactions over many months with individuals in a high level network. Crown counsel suggests, as was noted by Mr. Justice Joyal in R. v.

Walsh , (unquoted Decision of Associate Chief Justice Joyal, June 8, 2010) that the temptation of Nguyen to return to the same illegal activity again is a concern of the Crown. [ 90 ] The suggestion of an absolute curfew is only as good as Nguyen’s willingness to follow it and his father, who is proposing to act as a surety, ability to enforce it. Crown counsel suggests that despite the good intention of the father, all of this activity was occurring for months and months all under the nose of the father.

The accused lied to his father on two occasions telling his father he was in one location when the evidence indicates he was in Toronto and that is a concern that the court ought to consider. [ 91 ] On the tertiary ground the court has to consider the four factors. Crown counsel suggests that they have an overwhelming case that involved covert entries, the testing of cocaine, millions of dollars as well as video and audio interceptions. The charges are extremely serious where you have a major player in a large scale sophisticated offence shows the gravity of the offence.

The circumstances of the offence involve massive quantities of cocaine in such an organization. As in the case of R. v. Dew ( 2012 MBQB 28 ), Nguyen, if convicted, faces a very lengthy period of incarceration. [ 92 ] Crown counsel suggests that although the father has the best of intentions to supervise, the evidence shows that the allegations the accused is facing all occurred under his nose. To say that both his parents are now aware of the allegations and will provide the necessary supervision is something that Crown counsel says flies in the face of the evidence.

He was somehow able to keep his parents in the dark and is prepared to lie to his father. [ 93 ] Crown suggests that the plan does not discharge the onus that is on Nguyen.

Defence Position [94] At the outset defence counsel reminded the court that the case ought to be considered in light of the presumption of innocenceand right to reasonable bail. In this case, counsel suggests there is no guarantee that the Crown will secure convictions on the mattersthat they allege Nguyen committed. A review of R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665 that was filed by the Crownshows the challenges of drug cases but does not stand for the proposition that there cannot ever be bail in those types of cases. [95] The court was advised that Nguyen is twenty-eight years of age and was born and raised in Winnipeg. He has strong roots hereand lives with his parents who own the home where they reside. Nguyen has no criminal record and has studied at the University ofManitoba for three years.

Prior to his arrest, Nguyen had completed three weeks of training at the casino and was ready to start work. [96] Counsel advises the court that he informed the Crown of the plan for Nguyen in advance of the hearing and has not been madeaware of any concerns with respect to the parent’s ability to act as sureties.

Counsel suggest that the plan addresses all three grounds andinvolves the parents posting surety in the amount of $50,000.00, although there is the ability to increase the amount of that is somethingthe court desires. [97] Nguyen will reside with his parents on Dominion Avenue and abide by an absolute curfew. He will agree to abstain absolutelyfrom the use or possession of any drugs, forfeit his passport as well as any cell phones.

He will agree to have no contact with any of theaccused and will submit to curfew checks. [98] Defence counsel advises the family was in the dark during the time frame set out for the allegations. They had no idea of theactivities that are alleged but have now sat in court all day and are fully aware of what is alleged. Nguyen’s father is retired and hasindicated that he will essentially house sit his son. Counsel indicates that the parents would not put their house on the line if they did notfeel their son would comply with the conditions.

They are fully aware of their obligations should they be permitted to act as a surety. [99] As for the secondary grounds, counsel suggests the plan addresses those concerns. The accused has no prior criminal recordand his arrest is a deterrent in and of itself. His parents are now fully aware of the allegations and being subjected to an absolute curfeweliminates the idea of the accused lying as to his whereabouts as he must always be at home.

Counsel suggests that there is nothingbefore the court to suggest that there is a “substantial’ likelihood that the accused would become re-involved or that he would notcomply with any court conditions. This is so, counsel suggests, because he has no prior criminal record. [100] As for the tertiary ground, defence counsel suggests that ground is reserved for the rarest of cases as was echoed in the R. v. Hall2002 SCC 64 , [2002] 3 S.C.R. 309 case, being a first degree murder, and the R. v. Blind (1999 CanLII (C.A.) case, a seconddegree murder, both of which have been filed.

Counsel points out at paragraph 13 in Blind: “In applying this clause it is not sufficient, as was done in this case, to find the Crown has a strong case, that the offence charged isextremely grave, and that a potentially lengthy term of imprisonment is in the offing…More is required…the ultimate question…whetherin all of the circumstances, not just the circumstances surrounding the commission of the offence, detention is necessary to maintainconfidence in the administration of justice.” [101] Counsel suggests something more is required and that is consistent with the decision in R. v. Hall, supra.

In the Manitoba case ofR. v. Everette-Dorland

(2004) MBQB 137 , the court refers to Hall and states that the tertiary ground is to be resorted to only inthe most sparing of cases, it should not be resorted to routinely and should be restricted to those cases where the specific circumstancesreveal horrific and notorious allegations. [102] In terms of the four factors set out in Hall, supra, defence counsel suggests that while the Crown may appear to have a strongcase, defence counsel is not in a position to really know the strength or weakness of their case or the potential Charter argumentsbecause the Warrants and Authorizations are all sealed.

It is suggested that it may take months and months for those documents to beredacted and disclosed, something that should be in the consideration of the courts. [103] The disclosure to date is cumbersome as there are thousands of wiretap conversations and documents that counsel must review

entirely. The accused must be able to assist in this process and it is difficult to review such with someone in custody. [104] Defence counsel suggests that this is a circumstantial Crown case and speculative in nature. As was referenced by comments inBlind, the case may appear strong at the pretrial stage only to come unravelled as the trial progresses. [105] As for the second and third factors in Hall, this is not the worst form of drug dealing. There is no allegation of weapons orviolence being used or that the offence was committed on behalf of a criminal organization.

It is not suggested that the accused is theoperating mind or principle drug dealer. Counsel suggests at best he is acting at the direction of others, which is more in line of being adrug courier. [106] The potential for a lengthy period of time always exists with serious offences. Counsel suggests that should be contrasted with thepotential lengthy period of time between this date and that of a trial, of which two years is not uncommon for this type of case.

Defencecounsel referenced comments from the Everette-Dorland supra case which emphasized that the charging with a serious offence is not, onits own, a basis to detain a person where there is no valid reason to do so. [107] It is suggested by defence counsel that there are more serious drug cases than that at bar, however there are probably not manywith a better plan than that being proposed. There is nothing to say that Nguyen cannot or would not comply with the conditionssuggested.

He has no record and there is nothing to show a substantial likelihood to re-offend. [108] With the degree of supervision being offered by the family, Nguyen is a candidate for release and should be released onconditions. The Law [109] The case for the Crown at this stage of the proceedings contains a serious set of allegations that are untested. In that regard it isimportant to note that Mr. Nguyen is cloaked with the presumption of innocence, as is guaranteed by

section 11(

d) of the Charter.Furthermore, the court is guided by the principle that Mr. Nguyen is not to be denied reasonable bail without just cause, as is guaranteedby

section 11(

e) of the Charter. [R. v. Pearson, (SCC), [1992] 3 S.C.R. 665] [110] The consideration of an Application seeking Judicial Interim Release requires the court to consider

section 515 of the CriminalCode of Canada. [111] Section 515(6) of the Criminal Code of Canada is sub-headed “Order of Detention” and reads as follows:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody isnot justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealtwith according to the law, if the accused is charged (

d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs andSubstances Act or the offence of conspiring to commit such an offence. [112] Therefore as a result of s. 515(6)(d), the application before the court is classified as being reverse onus and it is incumbent on theaccused to show why his continued detention is not required. The justification for the continued detention of an individual is set out insection 515(10) of the Criminal Code of Canada 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 the law; (

b) where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, orany person 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 offencethat involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.” [113] The leading case dealing with section 515(10)(c), or the tertiary ground as it is often referenced, is that of R. v.

Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, a decision of the Supreme Court of Canada. Although that case was essentially a challenge to theconstitutionality of section 515(10)(c), the Supreme Court, in a five to four split, upheld the

section and proceeded to delineate theapplicability of this

section of the Criminal Code of Canada. [114] The background of the Hall case contained terrible facts in which the accused was alleged to have inflicted 37 separate slashwounds to the deceased while also cutting her neck to the vertebrae, essentially trying to decapitate her. [115] At first instance, the application for Judicial Interim Release was denied on the third (“tertiary”) ground in order to maintainconfidence in the administration of justice and that decision was upheld on a Superior Court Review. [116] As indicated above, the appeal to the Supreme Court of Canada was on the basis that detention pursuant to section 515(10)(

c) wasunconstitutional as violating both the presumption of innocence and the right to not to be denied reasonable bail except for just cause.After a thorough analysis of this

section and its history, the Supreme Court of Canada made the following observation in 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.” [117] 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 within section 515(10)(c).

That being said, the court emphasized that detention on this basis is to beon a narrow set of circumstances that are to be considered in light of the four factors set out by Parliament. [118] The court was clear that to properly ground the continued detention of an accused person under this subsection of the CriminalCode of Canada, it must be necessary (emphasis added) to maintain confidence in the administration of justice. The direction to thecourts was that they must look to all of the circumstances and particularly the four specified factors set out in the section.

Thatassessment must be done through the eyes of a reasonable person who “is one properly informed about the philosophy of the legislativeprovisions, Charter values and the actual circumstances of the case.”[R. v. Nguyen (1997), 119 C.C.C. (3d) @ p. 274] [119] It is from this legal prospective that I now go on to consider and determine the application for Judicial Interim Release that hasbeen brought by Mr. Nguyen.

Analysis [120] In most contested applications for Judicial Interim Release involving the trafficking of narcotics, it is not too far into thesubmissions of counsel that the Supreme Court of Canada case of R. v. Pearson, (SCC), [1992] 3 S.C.R. 665 (Tab 1Crown Casebook) is often cited.

[121] In that seminal decision, the Supreme Court of Canada recognized (p. 37) that cases involving the trafficking in narcotics posed adifferent issue from the norm: “…the normal process of arrest and bail will normally not be effective in bringing an end to criminal behavior.

Special bail rules arerequired in order to establish a bail system which maintains the accused’s right to pre-trial release while discouraging continuing criminalactivity.” [122] One of the specific concerns identified by the court was that narcotic offences did not seem to be committed spontaneously orrandomly, as is the case for many of the other Criminal Code offences that are committed.

The court noted (p. 37) that narcotic offenceswere different than most types of those offences in the following passage: “By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often abusiness and a way of life.

It is highly lucrative, creating huge incentives for an offender to continue criminal behavior even after arrestand release on bail.” [123] Essentially the court came to the conclusion that drug trafficking offences are the type of offences that may continue after anaccused person is arrested and granted Judicial Interim Release. [124] With that, the court identified (p. 40 & 41) that the specific characteristics of drug offences do require a special bail system thatwill not be undermined by someone continuing on with the activity or absconding from the court’s jurisdiction.

Recognizing thoseconcerns, the court was clear that merely being charged with a delineated offence does not automatically result in a denial of judicialinterim release. That being said, denial will occur where an accused person cannot put forth a sufficient basis to show that the continueddetention on the enumerated grounds is not justified. Essentially the court was definitive on the point that section 515(6)(

d) was to havea narrow scope in terms of being a basis for denial of bail. [125] The application before this court is a difficult one as the case presented by Crown counsel puts forth some very seriousallegations that occurred over a lengthy period of time. That has to be contrasted by the fact that you have a fairly young accusedindividual who has no prior criminal record. [126] The major drug identified in this case is that of cocaine, a

schedule one drug. Unfortunately it is a drug that is routinely referencedin these courts and appears to have a significant presence. It is generally thought of as being a very dangerous drug that unfortunately ishighly addictive. [127] The case against this accused is conceded by Crown counsel as being largely circumstantial, although there are certainly tidbits ofdirect evidence that implicate this accused in what, if accepted by the trier of fact, is certainly large scale trafficking of cocaine.

It issuggested by Crown counsel that this accused was involved in receiving and distributing multiple kilograms of cocaine in exchange forhundreds of thousands of dollars that were paid to the drug couriers of the cocaine. [128] The alleged involvement of Mr. Nguyen is said to have begun back August 2012 and essentially continued until a decision wasmade to terminate this project in December 2013.

On his arrest of February 5, 2014 police conducted a search of his family home andseized two grams of powdered cocaine, two grams of crack cocaine, packaging material, five cell phones, a digital scale and a vacuumbag sealer. [129] The evidence put forth by Crown counsel seems to support the inference that Mr. Nguyen was more than just what is commonlyreferenced as a “drug mule” particularly given what appear to be consistent observations made by the surveillance units, both at the timebefore and after alleged drug couriers came into Winnipeg and were met by Mr. Nguyen at various hotels throughout Winnipeg.

Thesewere highlighted in the lengthy representations that were made by Crown counsel and also contained in the Exhibits. [130] A distinguishing factor of note from many of the “project” type of cases is that this case put forth by the Crown is one that wasdone so without the use of a state agent. As can be seen in some of the cases filed (R. v. Thomas

(2006) MBQB 62; R. v. Patricia Walsh,unreported June 8, 2010; and R. v. Chaves, 2011 ONCJ 900 ), the use of a state agent was viewed as a factor that brings with it

inherent difficulties that were identified by the various courts. [ 131 ] Assuming the evidence proffered by Crown counsel is admissible, it is my view that the Crown has presented what can be classified as a very strong circumstantial case. [ 132 ] I have taken the opportunity to consider, in depth, the bail plan put forth by counsel on behalf of Mr. Nguyen. There can be no argument that in the particular circumstances of this accused’s family, the offering of a surety in the amount of $50,000.00 is a significant amount.

I also agree that in many cases, a plan involving an accused person returning to the family home and being under the supervision of his or her parents is often seen as a very strong factor for the court to consider. That being said, I have to say that in this case I do not find the type of comfort in this plan that one may expect given these two factors. Primary Ground [ 133 ] The Court, in Pearson , supra , identified that those who are facing drug related charges generally present as a risk to abscond during the court process.

The origin of that contention was noted in the findings by inquiries and commission hearings that were held in the United States and Australia. Although there was nothing on this point presented to the court from a Canadian source, the Supreme Court concluded that both of these jurisdictions were similar to Canadian society and as such accepted those findings as applicable to the considerations for Canadian courts. [ 134 ] Although I appreciate that the Federal Crown has identified the primary ground as a concern, I note that her comments on the point were very brief.

Even with the caution from the Pearson case, I have concluded that I see no concern on the primary ground to warrant the continued detention of the accused. [ 135 ] I note that Mr. Nguyen was born and raised here in Winnipeg. The court was advised that his immediate family is also resident here in Winnipeg and this is the place Mr. Nguyen identifies as being his roots. There was nothing put forth by the Crown to create any concern showing this accused has been away from this jurisdiction for any significant period of time or that he is a “real risk” to abscond from the jurisdiction.

The offer of a substantial surety, in my opinion, alleviates any concern that may or could exist on the primary ground. Secondary Ground [ 136 ] It is with respect to the secondary ground that this court has a much more of a concern in this case. I say that recognizing that this accused has no prior criminal record and as such, does not present with a prior history of breaching court orders. [ 137 ] Having said that, based on the evidence proffered by Crown counsel at the hearing, it is suggested that Mr.

Nguyen was involved in a fairly sophisticated venture in which it is suggested that he was involved in moving multiple kilograms of cocaine and in return received and transferred hundreds of thousands of dollars. The surveillance conducted by the Winnipeg Police supports the contention that Mr. Nguyen was involved in more than either transporting the cocaine or transporting the money.

It is the Crown position that the surveillance suggests that he was responsible for distributing the cocaine and collecting the monies from the individuals who were the dealers. [ 138 ] Two separate “stash suites” were identified and entered by police throughout this investigation. In each case it was observed that it was Mr. Nguyen who had sole access to these suites and at no time did he ever stay in any of these residences over night or the like.

Covert entry by the police was used to verify and establish the various amounts of cocaine that was present at various times as well as the quantities of money observed at different points in time. On at least one occasion, police covertly marked a bundle of money that had been located in the stash suite and that same bundle of money was subsequently observed in the suitcase of an alleged drug courier who was travelling back to Toronto after meeting with Mr.

Nguyen. [ 139 ] This type of activity of meeting and exchanging packages with the alleged drug couriers was articulated by Crown counsel to have occurred in excess of twenty occasions over the sixteen month duration that Mr. Nguyen became a person of interest and one of the focuses of this project. Given the amount of money alleged to have been in the possession of this accused as well as the quantity of cocaine, it is reasonable to conclude that such a person would have to be a trusted member of the group and relied upon to carry out the activities of this group.

[140] It is with this brief review of the evidence that Crown counsel suggests that Mr. Nguyen was fully involved in the offences oftrafficking such that it was his life, his business and his way of life. It should be noted that there was no evidence observed by police, orpresented during oral submissions, that Mr. Nguyen ever attended school or had any type of legal employment during the majority, if notentire time frame alleged for the offences now before the court.

All of the activity that is alleged to have been conducted by the accusedoccurred while he was resident at the family residence on Dominion Street, which is the proposed address for his release.

His comingand going on multiple occasions from the family home at varying times of the day cannot be answered by the suggestion the accusedwas going to school or work. [141] Just as important is the fact that when the Arrest Warrant was executed on this accused and during a subsequent search of theresidence, police located small quantities of powdered cocaine, crack cocaine, packaging materials, five cell phones, a digital scale andvacuum bag sealer.

Again, all objects alleged to be the tools of drug trafficking and all within the confines of the same home he nowsuggests would be a suitable residence for his bail plan. [142] What has been demonstrated is that on two occasions this accused lied directly to his father about his whereabouts, during whichtimes he was in fact outside of the Province. In addition, the items located during the search of the residence show, in my view, a lack ofrespect for his parents and their home.

All of those tools of the trade were presumably to enable this accused to continue on with his drugdealing enterprise. [143] All of this is with the backdrop that there was nothing to suggest that absent this project shutting down and this accused’ssubsequent arrest, that he was going to cease his involvement in the business that he had a lengthy period of involvement in. Once again,all of this under the nose of his parents who are proposed to be able to offer the necessary supervision to satisfy the court that thisaccused has discharged his onus. [144] Unfortunately I cannot come to that conclusion.

The evidence suggests that this accused was well entrenched in the allegedactivities that involved over twenty transactions in a fifteen month period of time. This type of involvement is the exact concernidentified by the Supreme Court of Canada in the Pearson case as being a serious concern to be considered in the bail context.Trafficking in drugs is far too lucrative for some individuals to leave as was also identified by the Associate Chief Justice Joyal in theWalsh, supra, case (pgs. 117 and 118), and given the alleged degree of involvement of this accused, I am not satisfied that Mr.

Nguyencan be adequately supervised by his parents. I find that he has not discharged his onus that he would not succumb to the temptation tobecome re-involved and thereby re-offend in a similar manner that is now before the court. Tertiary Ground [145] If I am in error in my conclusion that the accused has failed to discharge his onus on the secondary ground, I certainly find thatthe accused has not discharged his onus that his continued detention is well grounded on the tertiary ground. [146] I have had the chance to consider the cases filed by counsel and particularly the cases of R. v.

Blind, , adecision of the Saskatchewan Court of Appeal, as well as the case of R. v. Chaves, 2011 ONCJ 900 , a decision of the OntarioCourt of Justice. [147] I accept the premise that the detention of an individual on this ground is to be in the rarest of cases. I also accept that this courtmust not only consider the four factors listed under s. 515(10)(

c) but must also find more than just the Crown having a strong case, thatthe gravity of the offence and circumstances surrounding the commission of the offences are serious, as well as there being the potentialfor a lengthy period of incarceration to all exist. The court must find more and I suggest the court must conclude that in all of thecircumstances detention is necessary to maintain confidence in the administration of justice. [R. v.

Blind, supra, para. 13] [148] The application of these principles requires that this court pay heed to the question as to whether the continued detention of theaccused is absolutely necessary and if so whether it is necessary in order to maintain confidence in the administration of justice. [149] The facts articulated in this case by Crown counsel speak for themselves. I find that the Crown has established the existence of acompelling prima facie circumstantial case such that the characterization of it being a strong case is not an over-statement.

The gravity ofthe offences, as well as the circumstances of those offences before the court, were conceded to be serious in nature by defence counsel.The fact that in excess of twenty suspected drug transactions were observed to have been conducted by this accused, involving multiple

kilograms of cocaine and hundreds of thousands of dollars, shows the gravity of the offences. [ 150 ] Cocaine itself is a

schedule one drug that is known to be a dangerous and highly addictive drug. It is accepted by this court that even with the degree of trafficking alleged to have occurred, the lack of weapons being used or any form of violence being perpetrated leaves this case a little short of the most serious types of drug dealing that present before this court. [ 151 ] The observations made by police coupled with the covert entry into the two stash suites that were allegedly kept and only entered into by Mr.

Nguyen show that this was a sophisticated operation that was being operated as a business, solely focussed on as a money making venture. [ 152 ] As for the issue of a lengthy period of incarceration, that was conceded by defence counsel as a probable outcome should convictions flow from this matter. [ 153 ] I am advised that the Crown has provided disclosure to counsel and is now working on a request that the Authorizations be opened so that the Information to Obtain for each of the Authorizations can be vetted and disclosed to counsel who have requested these.

As a means to address the issue of the anticipated time frame to get this matter to Trial, Crown counsel indicated that in most cases they have had single accused Informations laid to eliminate the need to coordinate multiple counsel for hearing dates. [ 154 ] As for those accused who do request a Preliminary Hearing, the Crown indicated an intention to file much of the case by way of s. 540(7) and look to be able to complete most of the inquiries within a one or two day period of time. [ 155 ] Upon a consideration of the four factors enunciated under s. 515(10)(

c) I can come to no other conclusion that the Crown has presented a strong case that involves the trafficking of cocaine over a significant period of time and should a conviction flow it will doubt attract a lengthy penitentiary term of incarceration. The detail of the investigation shows a vast quantity of cocaine was transported into Winnipeg in exchange for hundreds of thousands of dollars by Mr. Nguyen. [ 156 ] As I had previously articulated, I accept that the use of the tertiary ground as a means of continued detention of an accused person ought to be done sparingly and in rare circumstances.

The unfettered continuous distribution of what appear to be large quantities of cocaine by this accused throughout the fifteen month period before the court is a serious concern for this court. The covert entries into the suite and capturing of transactions on a covertly installed audio and video probe show the degree of the strength of the case but also the concern for general public safety that is present. [ 157 ] I find that a well-informed member of the public would be affronted by the release of an individual arrested in the circumstances of Mr.

Nguyen, who it cannot be stated would not again fall to temptations of the lucrative return from drug trafficking. The Crown has satisfied me that in the entirety of the circumstances before the court that there is a sufficient basis to conclude that the continued detention of Mr. Nguyen on the tertiary ground is well grounded and that the accused has not discharged his onus on that ground.

Conclusion [ 158 ] I find that the accused has not discharged his onus on the secondary ground and his Application for Judicial Interim Release is dismissed and his detention will continue on secondary ground. [ 159 ] If I am wrong on the use of the secondary ground to continue the detention of Mr. Nguyen, I would be prepared to find that the circumstances before the court satisfy the continued detention of the accused on the tertiary ground. “ORIGINAL SIGNED BY:” MOAR, KELLY, P.J.