R. v. Singh, 2014 MBPC 52

R. v.

Singh Citation #2014 MBPC 52 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Anne Turner and Janna Hyman, for the Crown ) - and – ) ) Narinder Rhimpy Singh ) ) Roberta Campbell, for the Accused ) ) ) ) Judgment delivered: September 30, 2014 PUBLICATION BAN In accordance with the application made for an order under s. 517(1), I hereby order that the evidence taken, information given or the representations made and the reasons, if any, given or to be given, shall not be published in any document or broadcast or transmitted in any before the accused is discharged, or, if he is ordered to stand trial, the trial is ended.

MOAR, P.J. Introduction [ 1 ] Mr. Narindar Rhimpy Singh (“accused”) 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 the accused that has the onus to show why his continued detention is not required. [ 2 ] The Crown has opposed his release primarily on the secondary and tertiary grounds. [ 3 ] I will remind all that there is publication ban pursuant to section 517(1) of the Criminal Code of Canada on these proceedings on the evidence taken, the information given or representations made and the reasons given..

GENERAL BACKGROUND [ 4 ] By way of general background, in the spring of 2012 the Winnipeg Police Service Organized Crime Unit began an investigation that they labeled Project Sideshow. This investigation was set up to target individuals who police allege were associated with Asian Organized Crime.

In that context police identified two distinct groups or cells who they suggest were responsible for transporting multiple kilograms of illicit drugs, including cocaine, into the City of Winnipeg, from both Vancouver, British Columbia and Toronto, Ontario that was then being distributed onto the streets of Winnipeg. [ 5 ] 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 the use of surveillance and other traditional investigative methods, police obtained a number of judicial authorizations that permitted 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; the use of pinging for cellular phones; Production Orders as well as 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 many other communications between those under investigation were not captured due to the use of an encryption device known as Pretty Good Privacy (“PGP”). [ 7 ] The last intercept authorization ended on December 31, 2013 and on February 5, 2014 this project was concluded. The police

applied for and were granted numerous arrest and search warrants with one of them being for this accused. I was advised that this accused arrested at his place of employment and has remained in continuous custody since that date. [ 8 ] It is alleged by the Crown that this accused played a major role in what has been described as the Baljinder Singh crime cell. He was identified as a local courier who, along with Rayan Dizon (“Dizon”), was responsible for meeting with the couriers who attended to Winnipeg.

They would receive and make payment for the drugs and then stash, process and distribute the drugs to various customers while also collecting the proceeds from these individuals. [ 9 ] Police began to note a general pattern during this investigation where one of the three identified couriers would arrive in Winnipeg, either from Toronto or Vancouver, in possession of cocaine and to a lesser degree quantities of methamphetamine.

On arrival they would immediately check into a local hotel and remain there pending a meeting with the local person that had been designated by each of the cells. [ 10 ] The location of some of the hotels that were being used as meeting locations were discovered by police through the interception of communications. In those instances police were able to covertly install both audio and video probes within the rooms, prior to the arrival of the courier, so as to be able to get a first-hand look at the actual exchanges that were occurring between the parties.

In those instances police observed multiple kilograms of drugs being exchanged for large amounts of money that was noted to be bundled and vacuum sealed. [ 11 ] This accused was identified as generally being responsible for making the payment for the drugs while Dizon was generally the collector of the actual drugs. [ 12 ] The couriers usually remained in Winnipeg only for the length of time necessary to make the exchanges, generally a day or two, before then flying back to their home location with the proceeds from the sales. [ 13 ] During the course of this investigation police were able to identify separately located drug and cash locations.

With prior judicial authorization, they then covertly installed cameras into these locations that permitted observations to be made.

In addition, police were also granted authorization to covertly enter these premises for the purpose of examining the drugs and cash first hand. [ 14 ] Police also had prior authorization that permitted them covert entry into the luggage of the various couriers which again allowed them to confirm and document the presence of drugs and the quantity of money that was being exchanged. [ 15 ] 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 [ 16 ] The accused first appeared in this investigation on July 30, 2012. At that time police had already identified Oliver Banayos (“Banayos”) as one of the principle targets and had placed him under surveillance. On this date Banayos was observed with an unknown male who was operating a grey Jeep Liberty. Police ran the plates from that vehicle and it came back as being registered to this accused, Narindar Singh.

Police later confirmed his identity as the male they had observed that day and it as at this point in time that this accused became a target of this project. [ 17 ] The first substantive involvement of this accused occurred in December 2012. At that time a known courier, Ms. Cara Smith (“Smith”), flew into Winnipeg from Vancouver. Police, already in possession of a general warrant, covertly entered her luggage and observed two gift wrapped boxes inside a bag in the luggage. That observation of gift wrapped boxes became a common observation during other entries made by police into Smith’s luggage.

At that time police were not able to open the boxes but did weigh them and found they each weighed between three and four kilograms. [ 18 ] Upon landing, Smith was followed to the Victoria Inn Hotel where she checked into suite 435. Very shortly thereafter, police observed this accused attend directly to her suite in possession of a black backpack. Minutes later the accused exited the hotel and shortly thereafter Dizon arrived at the hotel.

He also went directly to Smith’s suite with a shopping bag and minutes later left the suite in possession of nylon cloth shopping bag that appeared to be full. [ 19 ] Smith left Winnipeg the next day and covert entry into her luggage revealed about $100,000.00 in bundled cash in a vacuum sealed bag. Surveillance confirmed that no one else had entered Smith’s suite during this time period other than two males observed by police. [ 20 ] The next observation of note made by police occurred on January 23, 2013 when once again Smith was observed to fly into Winnipeg.

Her luggage had been placed onto the conveyor belt before police could covertly enter it. [ 21 ] The pattern remained the same in that she checked into a local airport hotel and shortly after this accused was observed to attend the hotel in possession of a black backpack. He remained in the lobby area of the hotel for a short period of time before leaving. He was placed under surveillance and attended to a couple of different addresses before returning back to the hotel and going directly to Smith’s suite.

Minutes later he left the hotel and the next day Smith boarded a flight back to Vancouver. [ 22 ] This time police were able to gain access to her luggage and noted $50,000 in bundled cash that was in a vacuumed sealed bag. Police photographed the contents of the suitcase before closing it back up. [ 23 ] February 18, 2013 is an example that the Crown alleges shows that PGP technology was being used by this group.

Police intercepted a series of communications between Baljinder Singh and Dizon that included a suggestion they should do this over the other thing, which was the last communication that was intercepted at that time. [ 24 ] The next event of note occurs on February 19, 2013 when Smith arrives back into Winnipeg from Vancouver. Police were able

to open her luggage and observed two gift boxes wrapped in snowman gift paper that weighed in at about four kilograms each. [ 25 ] At this time police were also intercepting communications on Smith’s phone from her boyfriend, Tim Fuller (“Fuller”) and Ronald Baldovi (“Baldovi”) both of whom have also been arrested in this project. [ 26 ] Smith attended to the Fairmont Hotel in downtown Winnipeg and covert video in the hallway of that hotel showed the accused attend directly to her suite and minutes later leave the hotel. Dizon was then captured by this camera attending to Smith’s suite and left minutes later.

Smith’s luggage was again entered into at the airport and on this occasion police documented $160,000 in bundled cash that was vacuum sealed. [ 27 ] Also during this time period, the accused was noted to be assisting Banayos on occasion. On March 8, 2013 there were intercepts of Banayos speaking with an individual identified as Phommarath. The Crown suggests that they were clearly making arrangements for the delivery of drugs and Banayos advised this male that an individual in a grey Jeep would be arriving with the delivery.

It is believed by police that this accused delivered one-half kilogram of cocaine on behalf of Banayos, although there was no surveillance conducted to confirm this. [ 28 ] On March 14, 2013 there is an arrangement made between Banayos and Ron Morrison (“Morrison”) to meet at three o’clock. Surveillance was conducted by Winnipeg Police on Morrison and he was observed to attend to the Salisbury House restaurant on Notre Dame Avenue. There he was seen to meet with this accused outside of the restaurant.

Police observed the accused hand Morrison a black cloth shopping bag, which Morrison placed under his jacket and both individuals then left the area. [ 29 ] On March 19, 2013 Fuller made his first appearance in Winnipeg, having flown from Vancouver. Police covertly entered into his luggage and were able open a flowery gift wrapped box. Inside this box they observed two vacuum sealed kilograms of cocaine, which they photographed and sent samples off to Health Canada.

The results came back as being positive for cocaine. [ 30 ] Fuller checked into the Greenwood Inn near the airport and within an hour of his arrival the accused was observed on the hallway camera entering into his brother’s suite at 202-1167 St. Anne’s Road. He remained in that suite for about forty-five minutes before leaving in possession of a bag. [ 31 ] It had become known to police that this location was being used as a stash location for the money and later on in the investigation police were able to covertly enter that suite to install a camera.

This permitted them the opportunity to confirm that money was consistently being counted, stored and packaged in this suite. This was a location that the accused was often seen to attend prior to going to meet with the couriers on their arrival to Winnipeg. [ 32 ] From this St. Anne’s location the accused attended to the Greenwood Inn and stayed for about eight minutes. Given the short nature of that visit, police could only confirm that he attended with and left carrying bags.

He then went through a drive thru restaurant around Corydon Avenue before proceeding to a Redwood Avenue home, which later became his residence, Crown counsel understands this will be his proposed address should he be released. [ 33 ] The accused was also intercepted (Tab 10 of Crown materials) at this time speaking with his brother about making up a story to explain where he had been all day that he could tell his girlfriends parents when they got together later that evening. [ 34 ] On March 20, 2013 Fuller attended to the airport to fly back to Vancouver.

Police gained entry to his luggage and discover that he was carrying $109,000 which was bundled and vacuum sealed. Later that day the accused was captured on video at his brother place in possession of a small white plastic bag. He remained at that location for a very short period of time before then leaving. [ 35 ] On March 21, 2013 police covertly gained entry to Dizon’s residence on Market Avenue and located three empty vacuum sealed wrappers that are said to be consistent with packaging for kilograms of cocaine.

There are also two open boxes with wrapping on them, including happy birthday paper that had been seen in Smith’s luggage back on December 24, 2012. Police also located residue, scales and Tupperware containers that were all contaminated with cocaine.

Police at this time suggested that this was being used as the stash location for the drugs being run by Dizon. [ 36 ] Later that evening police intercepted communications of Smith making reservations at the Hilton Hotel by the airport for the next day. [ 37 ] On her arrival, police gained entry to her luggage and observed two boxes gift wrapped with the same paper that had been noted in Fuller’s suitcase on the prior trip.

Access was gained to one of the boxes and police documented one kilogram of cocaine. [ 38 ] The accused was noted to attend to his brother’s apartment on this same day and was essentially in and out before then going directly to the Hilton Hotel where Smith had checked into room 528. Police were able to install an audio and video probe in the room prior to her arrival and were therefore able to monitor (Tab 11 of Crown materials) the interaction of the two parties on this visit.

After about a minute in suite, the accused left the suite with his bag and was followed to a location where he was seen to meet with an unknown male. This male got into the passenger side of the vehicle and exits soon after during which time he appears to be placing a package into a bag he was carrying. [ 39 ] From here the accused went directly back to Smith’s suite and police were able to monitor the exchange of cocaine for money that occurred at that time. The accused is then followed by police as he leaves the hotel and he is noted to be conducting counter surveillance techniques during his drive.

Police believe that their surveillance was compromised after the accused had driven onto a McDonald’s restaurant parking lot and remained parked there. [ 40 ] At the time this was occurring the camera outside of Baljinder’s suite picked him up looking at his cell phone as he exited his suite. Police believe that he then attended to the St. Vital mall in order to pick up his brother, the accused. Although this pick up was not observed, police were able to confirm that the vehicle of the accused remained parked at the mall for four days.

Within that vehicle police observed a bag of McDonald’s food that had not been touched and the bag he had at the Hilton Hotel was gone.

[ 41 ] Smith left the Hilton Hotel the next day and attended to the airport in order to fly back to Vancouver. Police entered her luggage and this time did not find any cocaine or cash within it. This, the Crown suggests, is consistent with another occasion where the group believed that there may be some police surveillance that was occurring. On that occasion Smith had been inadvertently told by hotel desk staff that police had been on her floor and had probably been in her room.

Smith, with that information, made a call back to British Columbia and then flew back without anything in her luggage, which the Crown suggests is consistent with the surveillance having been detected. [ 42 ] On April 9, 2013 Fuller again arrived into Winnipeg and checked into a Winnipeg Hotel. Access had been gained to his luggage and police again observed gift wrapped packages within it. [ 43 ] At this time Police also intercepted a call from the accused to Baldovi where it is believed he is speaking with him about his PGP phone being dead.

During this call he advises Baldovi that he is ready to go back and that he has just got to be careful.

Police believe he is speaking about the March 22, 2013 incident where the surveillance was compromised and the accused “laid low” but was now ready to begin working again. [ 44 ] On this occasion it was Dizon who met with Fuller and when he flew back to Vancouver, entry to his luggage confirmed he was in possession of $69,000 in bundled vacuum sealed cash. [ 45 ] During a covert entry to the Market Avenue suite on April 11, 2013 police documented six ounces of cocaine, a scale, mixing bowls, bags and $10,000 in cash.

In the garbage can behind the building police observed a box with Star Wars gift wrapping that had been noted in Fullers suitcase on his last attendance to Winnipeg, along with an empty cut open kilogram wrapper that had cocaine residue on it. [ 46 ] On April 23, 2013 police intercepted a communication between Dizon and his girlfriend, Lindsey Lafrenais (“Lafrenais”), about the fact he is with the accused and advises her that he has to wait for him as he is dropping something off to him at his place. [ 47 ] At 1710 hours police observed the accused on video enter the Market Avenue suite with a backpack.

Dizon is also noted in the suite and the accused empties the contents of his backpack just out of the view of the camera that had been installed. He then leaves the suite about five minutes later and Dizon is then observed to pick up a black gift wrapped box, with the paper being consistent with that seen in the luggage of Fuller on the previous occasion. Dizon then opens that box in the bathroom which is also with the view of the hidden camera.

He then observed to begin to process the cocaine into individual chunks, wraps them and then stashed them in a shoe organizer that is located in the closet. [ 48 ] On May 10, 2013 the accused is seen on video in the Market Avenue suite to enter the washroom area. He then comes into the kitchen area holding a plastic bag that police believe contains methamphetamine.

Dizon is then observed to take a black plastic bag from under the sink and give it to the accused who puts the methamphetamine into it and then places that bag into his jacket before leaving the suite. [ 49 ] While this is being observed, police also intercepted communications between this accused and an unknown individual which are suggested to be arrangements being made to drop off the drugs.

The Crown suggests that although it is consistent that this accused was responsible to meet with the couriers, for delivering money and picking up drugs, there is also some evidence that he himself was also dealing in drugs. [ 50 ] On May 18, 2013 police again enter the Market Avenue suite and documented a vacuum sealed kilogram of cocaine, about three quarters of a pound of methamphetamine and $55,000 in bundled cash. [ 51 ] Fuller arrived back in Winnipeg on May 20, 2013 and checked into the Best Western Charterhouse Hotel in downtown Winnipeg.

Police observe Dizon coming and going from the Market Avenue suite during this time with bags and police suggest he is readying to meet with Fuller. The next day Fuller checked out of the hotel to fly back to Vancouver. Entry into his luggage confirmed that he was carrying $50,000 in bundled vacuum sealed cash, which was consistent with the amount of cash police had seen in the Market suite two days earlier. [ 52 ] On May 21, 2013 Dizon was observed to take out a garbage bag from the Market Avenue suite.

Police attended to the garbage bin and observed gift wrap paper, Fedex boxes and open vacuum sealed bags that were consistent with kilograms of cocaine. Later that day, the accused was observed to enter Dizon’s suite with a key, go into the bathroom and open a plastic bag. He then takes out numerous baggies that police believe contained methamphetamine, places them into a shopping bag that he then put into the front pocket of his sweater.

He is then observed to count out a quantity of money that he leaves on Dizon’s night stand before he leaves the suite. [ 53 ] On May 23, 2013 communications were intercepted between Dizon and the accused where the accused says he will come by Dizon’s work. The accused is then seen on camera to key his way into the Market Avenue suite and enter a closet. He removes what police believe is about an ounce of methamphetamine from a plastic bag and places the rest of the drugs back into the shoe organizer where police, on a prior occasion, had documented the presence of three-quarters of a pound of methamphetamine.

He leaves the suite minutes later now in possession of the drugs. [ 54 ] Police intercepted communications on May 30, 2013 (Tab 16 of Crown materials) that they believed showed this accused was in Vancouver for a wedding. Those communications depict negotiations police say he is having with an unknown male for a half, which police interpret to be a half kilogram of cocaine.

They agree that the transaction can be completed the next day and the accused then texts Dizon and they have a brief conversation. [ 55 ] Police conducted a covert entry into the suite on May 31, 2013 and observed two kilograms of cocaine as well as packaging and other paraphernalia that they had noted on previous entries. There are subsequent intercepts made on this day between the accused and the unknown male continuing to try and set up this deal but it appears to fall through and never does occur. [ 56 ] On June 5, 2013 police had installed a camera in Baljinder Singh’s suite on St. Anne’s Road.

Police observed both he and Dizon

to be counting money in the suite and that money is then given to Dizon in a backpack. This money was made up of multiple bundles and there was a conversation between them as to who was to get what, including “the guy at 330 York Avenue gets part of it.” [ 57 ] Later that evening Dizon is observed to attend Fat Daddy’s Nightclub where he completes a prearranged exchange with an unknown individual. He then attends to 330 York Avenue in possession of a black bag. He enters room 217 where he meets with an unknown female, who it is later learnt is Vanessa Gillies (“Gillies”).

One minute later Dizon is observed to leave that room, now empty handed, and it is believed his attendance there was to drop off money. [ 58 ] On July 8, 2013 Fuller arrives into Winnipeg and checks into the Fort Garry Hotel. Police had entered his luggage and observed a black “bebe” shopping bag that contained a gift wrapped package within it. Police were able to open that package and found that there was another package within that was covered in red tape.

That package was partially opened and police were able to see a vacuum sealed bag that weighed about two kilograms. [ 59 ] Dizon went directly from his girlfriend’s home to room 115 at the Hotel Fort Garry with a black backpack. It is believed that an exchange occurred between Dizon and Fuller after which Dizon then went directly back to his Market Avenue suite. Once in the suite, Dizon is observed with the “bebe” bag and puts it by the closet door. [ 60 ] The accused then attends to this suite with a backpack and takes a brown shopping bag out of it.

Dizon is observed to place a plastic bag containing cocaine into this brown bag and gives it back to the accused who puts it into the backpack he had arrived with.

Prior to the accused leaving the suite, Dizon is observed to be showing him the “bebe” bag and then shows him where he is going to hide the bag up in the hallway closet. [ 61 ] A covert entry into the suite later that evening by police resulted in police obtaining samples from a shoe box located in the closet, as well as the “bebe” bag, which were both confirmed to be cocaine. [ 62 ] On July 9, 2013 the tracking device on the accused’s vehicle showed he left his Redwood Avenue address and attended to Dizon’s place of business.

From there he went directly to the Market Avenue suite and is seen to take the “bebe” shopping bag from its spot and go into the bathroom. The camera in the bathroom was not working at that time but after about three to four minutes the accused appears back on another suite camera and is seen placing a box back onto the top of the closet.

He then leaves the suite shortly thereafter. [ 63 ] From that location, the vehicle tracker showed that he returned back to Dizon’s place of business for a couple of minutes before then leaving and stopping at a previously noted meeting spot on Roslyn Road for a brief period of time. He then goes directly back to his Redwood Avenue home. [ 64 ] On July 12, 2013 Smith flew back into Winnipeg and checked into the Hotel Fort Garry. During this time the accused received a text from Baldovi that police suggest is to alert him to look at his PGP encrypted device.

Minutes later the accused calls Dizon and asks him to check his other, which police again say was a suggestion he also look at is PGP encrypted device. [ 65 ] About an hour after Smith’s arrival, Dizon advised his girlfriend that he needed to attend to the Hotel Fort Garry to pick something up. He attends to that location with a backpack and goes directly to room 300. Minutes after arriving at the hotel he is then observed leaving with what police believe is cocaine.

Police had been unable to access Smith’s luggage on her arrival this time. [ 66 ] Two minutes later, the accused is then observed to attend the Hotel Fort Garry with a black computer style bag and he too went directly to Smith’s room. Dizon is observed to attend back to his Market Avenue suite and on video is seen to remove a gift wrapped package out if his backpack. He is then seen unwrapping this package in the bathroom and pull out a brick of cocaine that he places into the bottom of the shoe organizer in the closet.

Police covertly entered this suite later that day and confirmed the presence of cocaine, two separately wrapped bricks that were packaged as one and vacuum sealed. [ 67 ] Intercept communications showed that Smith had missed her flight back to Vancouver the next morning and police were unable to access her luggage. [ 68 ] On July 25, 2013 Gillies is intercepted booking a hotel room at the Best Western Hotel on Pembina Highway. She actually had her own apartment here in Winnipeg but never used it to meet with people. She arrived at the hotel and was observed carrying a large duffle bag into room 222.

The tracking device on the accused vehicle showed that he attended to this hotel and entered it carrying a green shopping bag. He exited the hotel about three minutes later and was no longer n possession of a bag. He attended to the next door Wendy’s restaurant and sat there. Police believe that he was conducting counter surveillance at that time to see if he was being watched. [ 69 ] About ten minutes later Baljinder Singh and a Mr. Dhaliwal arrived at the hotel with Dhaliwal going into the hotel.

About three minutes later he is observed coming out of the hotel, now with a green Sobeys bag, and gets back into the car and drives off with Baljinder Singh. [ 70 ] Soon thereafter Gillies is observed to exit the hotel still carrying the large black duffle bag and now also the green shopping bag that the accused had previously entered the hotel with. At the time she is observed to be leaving, video surveillance at Baljinder Singh’s home shows that Mr. Dhaliwal is with him in the suite.

Both of these males, along with a third unidentified male, were observed to be cutting up a kilogram of cocaine and then weighing it. These males could be heard speaking about the quality of the work brought by Gillies as compared to that they get out of Vancouver. [ 71 ] After leaving the hotel, Gillies is observed to attend to her Corydon Avenue apartment before leaving and parking in a seven- eleven lot.

About fifteen minutes later Baljinder Singh arrives and they drove to another area where Baljinder then gets into Gillies car for about one minute before exiting and driving away in his own car. [ 72 ] On August 1, 2013 intercepted communications showed that Baldovi texted the accused with the message “hi”, and that was the only communication between the two of them. Police believe that was code for him to access his PGP device for further communications.

[ 73 ] August 2, 2013 intercepts showed Gillies called to book a room at the Best Western Charterhouse Hotel in downtown Winnipeg. At about 8:00 pm the tracking device on the accused’s vehicle showed he left his Redwood Avenue home and went directly to the Charterhouse hotel where he stayed for about three minutes. He then left and went to an address that was later found to be that of Dizon’s parents and stayed for about six minutes. From there he went to another address which is the home of Conrad Bautista, whose name had surfaced peripherally in this investigation and stayed for about twenty minutes.

The accused then went directly back to his Redwood Avenue address. [ 74 ] The accused had also received an odd text from Dizon that was out of context to any conversation occurring. Dizon’s tracking device in his vehicle then showed that he left his girlfriends home and attended to his parents address and stayed there for three minutes. A subsequent communication was intercepted between Dizon and his girlfriend about check stops and when she asked why he was asking about those he said that he had something on him.

Police believe he had attended to his parent’s home to pick up cocaine that had been left there earlier by the accused when he had attended. [ 75 ] Dizon was then seen on video at his Market Avenue address placing a plastic bag in the show organizer, which is a location he had been seen to consistently stash drugs. [ 76 ] On August 14, 2013 Fuller flew into Winnipeg and covert entry into his luggage (Tab 20 of Crown materials) by the police revealed a UPS box that was wrapped in Minnie Mouse wrapping.

He checked into room 537 at the Delta Hotel where police had covertly installed video and audio probes. [ 77 ] Police were able to observe Fuller take a smaller suitcase out of his suitcase and pull out a gift wrapped box from that suitcase. He then is observed to put something into the lower drawer and also takes another package out of sight of the camera.

The accused is then captured entering and exiting the suite of his brother in possession of the black shoulder laptop bag he had been seen carrying on prior occasions as well as a cloth shopping bag. [ 78 ] Dizon arrived at the Delta Hotel and is captured on video receiving a package from Fuller and then leaving the suite with his backpack. He drove directly to the 133 Market Avenue suite and is captured on video still carrying the backpack. [ 79 ] The accused then attends to the Delta Hotel and knocks on Fuller’s door.

There was no answer and after a couple of phone calls and more knocking, Fuller ultimately does answer the door and that is captured on video. The accused takes a plastic bag out of his backpack and gives it to Fuller at which time he then leaves the suite. [ 80 ] Police covertly entered the Market Avenue suite later that day and photograph two vacuum sealed kilograms of cocaine as well as one pound of methamphetamine they had located. [ 81 ] On August 15, 2013 at about 6:00 a.m., Fuller left for the airport and police were unable to gain entry into his luggage on this occasion.

A search of his hotel room resulted in the seizure of Minnie Mouse wrapping paper, a UPS box and a luggage tag in his name. [ 82 ] This is consistent with what occurs each time Dizon and the accused attend to meet with the couriers. Dizon picks up the packages and the accused drops off cash for the drugs. [ 83 ] Intercepts occur on August 15, 2013 between Gillies and a male where she confirms that she is a drug dealer. At the time she was driving from Toronto to Winnipeg and arrived on August 19, 2013 in her own vehicle.

At about noon on this day the accused is seen to attend to his brother’s suite and leave with a dark colored bag. [ 84 ] On August 20, 2013 intercepts showed that Gillies called the Canad Inn at Polo Park to reserve a room. The tracker on the vehicle of the accused showed that at about 11:15 a.m. he left home and went to Dizon’s place of business where he stayed for twenty minutes. He then went to the Canad Inn where Gillies had checked in.

Prior to her attendance police had again covertly installed video and audio probes and she is noted to arrive in the suite at 1:15 p.m. with a black duffle bag. [ 85 ] At 1:20 p.m. the accused arrived at the hotel and went directly to the suite of Gillies. She is then observed to be take bricks of cocaine from a bag and the accused then loads them into his backpack. There is a discussion about money and she then hands him 2 packages of cocaine and receives a package from him.

He then leaves and within minutes of that Gillies is seen to also leave the hotel and returns to her own suite on Corydon Avenue [ 86 ] The accused went directly to the Market Avenue suite where he takes out the two kilograms of cocaine and places them (Tab 21 of Crown materials) into the hallway closet before leaving.

He is then intercepted communicating with Dizon who is told to come outside of his work place where it is believed they meet to discuss what had just occurred. [ 87 ] Covert entry into the suite by police that evening resulted in them locating the two kilograms of cocaine where they had seen the accused place them. [ 88 ] The next day police covertly entered Gillies suite on Corydon Avenue and noted (Tab 21 of Crown materials) three bundles of cash in the black duffle bag that was seen on the video at the hotel room.

Police estimate there to be about $100,000 in this bag. [ 89 ] At 3:00 p.m. the next day the accused was captured entering the bedroom at his brother’s suite. He is observed to take out a large plastic bag from an area near the bed and proceeds to sit down and count four bundles of money.

The estimated amount was $40,000 and then places the money into his backpack and is seen texting on his phone before then leaving the suite. [ 90 ] Subsequent Intercepts showed that Dizon called a male named Inthalangsy indicating the accused was driving him back to his house and suggests this male go around the corner as he is just coming to grab some files. He then tells the male where to park and the accused drove to Dizon’s work place and then to the Market Avenue suite. [ 91 ] Police observe the accused enter and exit the suite on the hallway camera as well as on the camera in bathroom area. Dizon is

observed to retrieve a large stash of cash out of his room and passes it to the accused and then leaves the suite. [ 92 ] Police obtain intercepts (Tab 21 of Crown materials) between Baldovi and Baljinder Singh, where Baldovi advises him that the thing did not go through and tells him that he needs to send it from a different place. Tracking information showed that Baljinder Singh attended to the Western Union Office on McPhillips Street and then makes a call to that office that is intercepted.

In this call he is heard to be inquiring why his $1000 wire transfer did not go through to Baldovi and is told that it is because of a business decision and he is told that he can retrieve his money at any Western Union location. [ 93 ] On August 23, 2013 Dizon and the accused were observed on the covert video at the Market Avenue suite at which time Dizon is seen to take a bag from the shoe rack and go into the bathroom. The accused is then seen at this time to be going back and forth from the kitchen with empty Ziploc baggies.

Dizon is then seen exiting the bathroom area with a grocery bag that he ties up and places back onto the shoe rack. The Crown suggested that the processing of drugs consistently occurred in the bathroom and suggested that is what was occurring despite the video in the bathroom not working n this occasion. The accused then left the residence with his black backpack.

Later that day Dizon is observed to be packaging and weighing Ziploc baggies of cocaine in the bathroom. [ 94 ] On August 28, 2013 police intercepts showed a call from Baldovi where they discuss communicating on PGP devices. [ 95 ] August 30, 2013 Fuller arrived into Winnipeg and covert entry to his luggage revealed the Minnie Mouse gift wrap, a UPS box as well as two kilograms of cocaine in a vacuum sealed bag and a quantity of MDMA also in a vacuum sealed bag.

Samples of the cocaine were taken and sent for testing and came back positive. [ 96 ] Fuller checked into the Greenwood Inn and at about 6:10 pm the accused was observed to arrive at the hotel with the black computer laptop bag. Fuller and he were seen to shake hands as he entered the room and one minute later the accused is seen to leave the room with his computer bag. He was tracked going directly to Mr.

Bautista’s residence as he had done so on August 2, 2 013 where he stayed for about twenty minutes before then leaving to go back to his Redwood Avenue address. [ 97 ] Fuller flew back to Vancouver on August 31, 2013 and police did not gain access to his luggage on this occasion. [ 98 ] At about 9:30 p.m. on September 10, 2013, Dizon was observed to dump the contents of a plastic bag onto his bed. Police observed multiple bundles of money and Dizon proceeds to remove the elastic bands from each bundle and counts the cash.

Police estimate there was about $55,000 in total that he then places back into the plastic bag and puts the bag onto the bottom shelf of his night stand. His girlfriend is also noted to be present in the bedroom at the time he is counting the money. [ 99 ] On September 11, 2013 at 9:45 a.m. intercepts between Dizon and his girlfriend revealed that B.J. was on his way to count the money. Baljinder Singh is then captured on camera to attend into the suite and goes into the bedroom.

There he and Dizon are observed to count the money that had been placed on the night stand shelf. [ 100 ] Baljinder leaves with nothing in hand but Dizon is observed to leave with a backpack and a laundry bag. Intercepts at 11:21 a.m. show the accused called Dizon to ask where he is at. Dizon advises him that he is just picking up supplies for work and they arrange to meet at his place of employment. Just before noon they are both captured on video entering the Market Avenue suite with Dizon in possession of a large bag and his backpack.

The accused waits in the front hall and Dizon is seen with a smaller backpack, a plastic grocery style bag and a laundry bag. After they leave the suite police activate the covert video in the bedroom and note the bag containing the cash is now gone. [ 101 ] Later that afternoon Gillies books a room at the Charterhouse hotel and is seen entering suite 319 with a purse and a blue bag. The tracking device of the accused’s vehicle shows that he was parked near the hotel for about fifteen minutes and they both leave the hotel in close proximity to one another.

There is then a strange and guarded conversation that is intercepted between the accused and his girlfriend. The essence of the call is that the accused appears to be in hurry to meet with an unknown individual and implores her to be home on time so that he is not late. [ 102 ] On September 17, 2012 around 6:00 p.m. Fuller again arrives in Winnipeg from Vancouver. Covert entry into his luggage revealed the presence of a shopping bag (Tab 23 of Crown materials) and inside that bag there was a package in birthday gift wrapping.

That package was opened and a FedEx box containing two kilograms of cocaine was noted. [ 103 ] Fuller checked into room 539 at the Victoria Inn and at 7:00 p.m. the accused arrives and stays in the room for about nine minutes before leaving and going directly to Bautista’s home with a backpack. Both men were then observed to get into Bautista’s vehicle and go once around the block before the accused exited and left the area. [ 104 ] At 6:00 a.m. the next morning, Fuller left Winnipeg and entry to his luggage noted him to be in possession of $100,000 in cash.

A search of his hotel room turned up the original bag police had noted on his arrival, which was seized. [ 105 ] On September 18, 2013 at about 10:30 a.m. there are intercepts between Dizon and an unknown individual about him being late. He is then seen on video leaving the Market Avenue suite and has a conversation with his girlfriend that is intercepted. He told her that he had to go to St. Vital to grab something for B.J. and attends to his family’s home and stays for a few minutes before leaving with a large black backpack.

He then attends back to the Market Avenue suite, takes his backpack in and is observed to take two bricks of cocaine out and place them into a drawer under his bed. [ 106 ] September 24, 2013 there are intercepts between Dizon and Lafrenais where he advises her that he left money in an envelope at her place. They arrange to meet at a later time in order for him to pick up the envelope. In the meantime the accused and Dizon agree to meet and while Dizon is on his way down the stairs he appears to inadvertently dial a number that remains open.

He accused is then heard on the open line to say is that it and Dizon answers there is only $55,000. [ 107 ] The last incident captured by police occurred on November 1, 2013 when police intercepted a call at 9:30 a.m. between the accused and Dizon. In that call they appear to be talking about an outstanding bill for an apartment they had previously shared and agree

to meet at Dizon’s place of business. They then appear to have lunch together and after the accused drops Dizon back off at work, he receives a call from him outlining that he left a bag in his vehicle with files. The accused says he will be right back and attends back to this location. [ 108 ] Nothing else was gathered by police as they believe all communications were now occurring with the use of PGP. In addition the accused was in Mexico for much of the month of December. [ 109 ] The Crown also filed the tax records of this accused which showed no income reported for 2012 and 2013.

CRIMINAL RECORD [ 110 ] This accused does not possess a prior criminal record. CROWN POSITION [ 111 ] The Crown opposes the application for release by this accused on the secondary and tertiary grounds and suggests that he cannot meet the burden on him to justify his release. [ 112 ] The Crown suggests that this accused can be most closely compared to Mr. Nguyen who was detained on the secondary and tertiary grounds. Based on the amount of money and drugs that were in his hands, the Crown suggests that this accused was a trusted member of the organization and entrusted to carry out high level transactions.

This was his full time job and his livelihood, which when coupled with the high level of trust that he was shown all suggest that on the secondary ground he is at high risk to return back to that lifestyle. [ 113 ] As well, on the tertiary ground, the Crown suggests that the courts comments in the Nguyen case (Tab 1 of Crown’s Supplemental Book of Authorities, para. 156 and 157) apply equally to this accused in that he poses a concern for the general public safety given his unfettered continuous distribution of cocaine. [ 114 ] Crown counsel goes on to suggest that there is also some evidence that, in addition to working for his brother, this accused was also negotiating his own drug transactions which they say demonstrates that he also has control and decision making powers in this organization. [ 115 ] Crown counsel expressed concern with the bail plan that was put forth as the accused will not be living with his proposed surety.

Instead he proposes to live with the daughter of the surety, who is his girlfriend, at the address on Redwood Avenue. [ 116 ] This living arrangement concerns the Crown given events that occurred in July of 2009. On that date a CDSA search warrant was executed at that same residence and police seized seventy ounces of crack cocaine, twenty-one ounces of powdered cocaine, forty kilograms of procaine and cash in the amount of $45000 from various locations in the basement area of the home. Ms.

Hawryluk was charged as a result of that incident but her charges were later dropped when her then boyfriend accepted responsibility and pled guilty. [ 117 ] The Crown does not dispute or doubt that the parents have the greatest of intentions when they step forward prepared to act as a surety. What concerns the Crown is the issue of who is going to supervise this accused, particularly given the 2009 incident. [ 118 ] The Crown also points to the tertiary ground and suggest that they possess an overwhelming case against this accused.

The gravity and nature of the offence is serous and involves high level trafficking with massive quantities of drugs and money involved. This accused was working within a sophisticated organization and is facing serious jail time if he is convicted. On this basis the Crown suggests that the continued detention of this accused is also warranted on this ground. [ 119 ] It is on this basis that Crown counsel suggests that the accused cannot discharge his onus and he ought to be detained on both secondary and tertiary grounds.

DEFENCE POSITION [ 120 ] Defence counsel addressed two issues of concern for her at the outset of her comments to the court. [ 121 ] With respect to the issue of the search warrant executed in 2009, counsel indicates that Ms. Hawryluk did not know that her then partner had hidden drugs in the home and once the warrant was executed she immediately terminated that relationship. It should have no relevance in this case as it is the parents who are posting the surety and it is they that are prepared to supervise.

The mother, Barbara, is retired and they live close enough such that she can attend to the home on a daily basis. [ 122 ] The other issue of contention is the suggestion that this accused should be equated to Philip Nguyen. He was found to be involved from August 2012 until the project terminated. He had various drug paraphernalia in his room at the time the arrest warrant was executed. The court found him to be involved in more than transporting the drugs and money but was also responsible for distributing the cocaine.

He lied to his parents and would have continued in the business but for the project closing down. [ 123 ] Counsel pointed out that in the Crowns submissions on this matter she indicated that this accused is a local courier and it seemed that he was the money guy. This, according to defence counsel, does not place him anywhere near the level of Mr. Nguyen and his involvement. [ 124 ] The Crown’s suggestion that he is doing more than his brothers bidding is based on two instances. The first comes from May 10, 2013 where he is intercepted and at one point identifies himself as BJ’s brother.

This, counsel suggests, shows that he is acting at the behest of his brother. [ 125 ] The second incident being from May 30, 2013 where it is alleged he is trying to set up a half-kilogram deal. The intercepts do not support that inference and more importantly no deal ever did occur.

[126] The suggestion that he is trusted member of the organization has to be considered in the light that this is a family connection andis a different consideration than many of the cases that have been filed. [127] Counsel points out that when this accused’s brother was charged in a prior investigation, there was no hint that this accused wasinvolved and that is important for this court to consider. This accused is thirty-nine years of age and has no prior criminal record.

He wasborn and raised in Winnipeg and graduated with his grade twelve in 1992. [128] At the time of his arrest he was working at Telus Solutions and that is where he was in fact arrested. There was nothing found onhim, in his vehicle or at his residence that would connect him to the drug trade. It is on this basis that she suggests he is more closelyakin to the accused, Sukhdeo. [129] Counsel suggests that this accused extracted himself from any further involvement in September 2013 and at that time got a job atTelus Solutions.

The tax records from 2009 and 2010 show that this accused has worked his entire life and that is also demonstrated in2011 from the T4 that is noted. [130] This accused remained in the public for some five months without any further involvement after having extracted himself fromthese matters in September 2013. Counsel asks how he is now a danger to the community.

The Crown suggesting that the lack ofinformation or further detection was because of the use of encrypted phones is nothing but speculation and cannot be relied upon by thecourt. [131] Counsel suggests that it is apparent that this accused stopped on his own, which is a far different situation from Mr. Nguyen.Counsel says he is someone who can be trusted in the community. [132] On the secondary ground, counsel pointed out that the Pearson case is often expanded and really stands for the premise that thereverse onus provision is needed because of what drug trafficking is.

It does not stand for the proposition that those involved in drugtrafficking do not get bail. [133] The fact that this is a serious case does not mean conditions cannot be fashioned to address the concerns. In that regard counselproposes that in addition to the posting of a surety, a curfew would be reasonable, the court could impose bail supervision, he shouldhave no contact and communication with his brother and the others who have been charged. [134] It is counsel’s position that the accused has discharged his onus and is not a substantial likelihood to comment a further offence.

ANALYSIS [135] The case for the Crown at this stage of the proceedings contains a serious set of allegations. At the outset I do note that even inthe face of serious allegation, Mr. Singh is still cloaked with the presumption of innocence, as is guaranteed by

section 11(

d) of theCharter. Furthermore, he is also not to be denied reasonable bail without just cause, as is guaranteed by

section 11(

e) of the Charter. [R.v. Pearson, (SCC), [1992] 3 S.C.R. 665] This particular application requires the court to consider the various subsections of

section 515 of the Criminal Code of Canada. Section515(6) 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. [136] Therefore the application before the court is classified as being reverse onus and it is incumbent on the accused to show why hiscontinued detention is not required. The justification for the continued detention of an individual is set out in section 515(10) of theCriminal Code of Canada and reads as follows: 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.” [137] I have taken the opportunity to read all of the cases that have been filed and have also considered the comments of the SupremeCourt of Canada in the case of R. v.

Pearson , (SCC), [1992] 3 S.C.R. 665 (Excerpt contained at Tab 1 CrownCasebook). [138] Although that case was essentially one dealing with the constitutionality of s. 515(6)(d), the court did spend a great deal of timeexamining the rational for the need of a special set of bail rules for those charged with, as in this case, trafficking in narcotics. At page 37of that decision the court acknowledged that these types of cases bring different challenges for a court: “…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. [139] One of the specific concerns identified by the court was that narcotic offences did not seem to be committed spontaneously orrandomly and at page 37 noted that narcotic offences were 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.” [140] That essentially is what Crown counsel in the case at bar suggested in her closing remarks. She says that that the evidence showsMr.

Singh is fully entrenched in the drug subculture and that this was his life, ergo, he continues to pose a significant risk to thecommunity at large. [141] The Supreme Court of Canada also recognized that drug trafficking offences are the type of offences that tend to continue andtherefore require a special set of rules. [142] Although the Supreme Court of Canada recognized this special need in these types of cases, I agree with the submissions ofdefence counsel that the court did not go so far to say that an individual who is charged with one of the identified offences cannot still bea good candidate for release.

That being said, it is clear to me that denial will occur where the accused cannot put forth a plan thatsatisfies a court that his continued detention is not required to prevent the continuation of further offences or that the alleged offenderwill not abscond from the jurisdiction of the court. [143] 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 the section, the Supreme Court, in a five to four split, upheld the

section and proceeded to delineate the applicabilityof this

section of the Criminal Code of Canada. [144] The Hall case alleged a very serious set of facts including the infliction of 37 separate slash wounds to the deceased as well ascutting her neck to the vertebrae, essentially trying to decapitate her. At the first instance bail hearing, the application for Judicial InterimRelease was denied on the third (“tertiary”) ground in order to maintain confidence in the administration of justice and that decision wasupheld on a Superior Court Review. [145] 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 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.” [146] 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. [147] 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.

Furthermorethe assessment must be done through the eyes of a reasonable person who “is one properly informed about the philosophy of thelegislative provisions, Charter values and the actual circumstances of the case.”[R. v. Nguyen (1997), 119 C.C.C. (3d) @ p. 274] [148] In the case of R. v. Blind, (SK CA), [1999] S.J. No. 597, Justice Jackson on behalf of the Saskatchewan

Court 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 those mentioned in ss. 515(10)(a)(

b) and (c), just cause may be in the need to maintain confidence in the administration of justice.” [ 149 ] The court suggested that something more than just the four enunciated factors must be present in order for a court to invoke this ground as a basis for detention. In other words the court must go beyond the circumstances of the case at bar and ask is detention necessary in order to maintain confidence in the administration of justice. [ 150 ] The case before the court contains a serious set of allegations.

The video evidence presented shows this accused handled multiple kilograms of cocaine and hundreds of thousands of dollars. [ 151 ] It is difficult to classify the involvement of Mr. Singh other than to say I do not believe that he rises to level of Mr. Nguyen, whose application for release was denied by me. The evidence indicated that Mr. 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 various items identified as being drug paraphernalia were located, including actual drugs. [ 152 ] I concluded in that application 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. [ 153 ] That being said I also do not agree with the submission of defence counsel that it is Mr. Sukhdeo that Mr. Singh most closely resembles.

The evidence put forth shows that Mr. Singh was far more than a simple courier transporting drugs for cash. In my opinion the evidence shows that he had access to both the drug and money stash house. He would meet with the drug couriers when they arrived in Winnipeg and was essentially responsible for providing the money transfer upon Mr. Dizon receiving the drugs. Video surveillance showed that this accused was present and assisted at times when the cocaine was being processed and repackaged.

There was also some hint that he may also have been involved in distribution of the drug here in Winnipeg. [ 154 ] All of that suggests to me that he was a trusted member of the Baljinder Singh group and 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. [ 155 ] Counsel puts forth a bail plan that can be classified as strong in that it includes a large surety from a respected member of the community.

Also, I note from reading the initial submissions made to the court and as I saw on the second day of this hearing, there are supports in the community who were present throughout the hearings and are now aware of the allegations that led to the arrest and detention of this accused. That first-hand knowledge as well as the conditions proposed presents the expression of a significant level of supervision [ 156 ] This accused also presents with no prior criminal record and is cloaked with the presumption of innocence.

In my view, it is in these types of circumstances where the facts relating to the offences take on an added degree of importance. I say that with the idea that the strength of the Crown case will impact the assessment of both the secondary and tertiary grounds. PRIMARY GROUND [ 157 ] The primary ground was not seriously advanced by the Crown. That being said, the fact the accused was born and raised in Winnipeg, the offering of a significant surety as well as the seizure of the accused’s passport all would in my view adequately address any primary ground concerns that may exist.

I find that the continued detention of the accused on this ground is not warranted. SECONDARY GROUND [ 158 ] Based on the evidence presented, I am of the view that the Crown has a strong prima facie case concerning this accused. There is plenty of video evidence before this court showing his degree and level of involvement in the transactions. On numerous occasions he was shown to meet with the drug couriers where he would present the money for the drugs that were being received.

The case put forth by the Crown is certainly one that does not lack merit as it relates to his involvement with the drug couriers. [ 159 ] As for the suggestion that he may have been conducting his own drug deals, I tend to agree with the submissions of defence counsel that the basis for such a conclusion to be drawn is limited and not nearly as strong as other components of this case.

It will require the court to draw inferences and at the end of the day they will have to the only reasonable inferences that a trial court can draw in order for a court to enter a conviction on those specific matters. [ 160 ] Defence counsel did identify some of the issues that may be canvassed but agreed with the submissions of Crown counsel that they are complicated and will take a lengthy period of time to fully litigate.

Instead counsel chose to focus primarily on the accused, his lack of any prior criminal record and his plan for release. [ 161 ] The fact that this accused has no prior criminal record, that he was not the main operator of this operation, that he removed himself from any further involvement from September onwards, that he was gainfully employed at the time of his arrest and that he has presented a significant plan of supervision all ought to alleviate any concerns the court may have. [ 162 ] I have considered the submissions of counsel and with some difficulty have concluded that the accused has discharged his onus on the secondary ground.

I do so based on the following: (

a) I accept the submission by defence counsel that the evidence put forth seems to support suggestion that any further involvement in the offences alleged ended in September 2011. (

b) Upon his arrest for these offences in February 2012 there was nothing located on his person, in his vehicle or in his house that

could be seen as tools of the drug trade. (

b) The accused has no prior criminal record and therefore has no prior history of criminal involvement or criminal re-involvement. (

c) The accused was gainfully employed at the time of his arrest at Telus Solutions. (

d) The accused has the prospect of continued employment, should he be released, as is evident by Exhibit B5. (

e) The bail plan put forth includes a surety of $100,000 from an individual who sat through the bail process and is obviously well aware of the allegations. [ 163 ] In terms of the bail plan put forth it was the issue of his residency that posed the greatest concern for this court.

The incident from July 2009 that was detailed by Crown counsel certainly raised concerns on the issue of supervision and more particularly Miss Hawryluk’s ability to adequately identify any potential signs that this accused was becoming re-involved in similar types of offences. [ 164 ] However what I do take from that matter is that she was not convicted of any offence stemming from that matter nor has it been alleged by Crown counsel that she had any involvement in the matters that are now before the court. That coupled with the significant surety and the offer of an additional level of supervision by Ms.

Barbara Hawryluk has alleviated any concerns. TERTIARY GROUND [ 165 ] 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. [ 166 ] In my view, this case lacks that something more given the apparent cessation of involvement by this accused, his employment in a lawful job and the strength of the bail plan put forth.

I am satisfied that a right thinking member of the public who is fully informed of the bail provisions would not lose confidence in the administration of justice should this accused be released. CONCLUSION [ 167 ] As a result I am satisfied that the accused in this case has discharged his onus and is a candidate for release on very strict conditions. I would invite counsel to contact trial coordination to arrange an appearance so that conditions can be fashioned. “ORIGINAL SIGNED BY:” KELLY MOAR, P.J.