R. v. Truong Date:, 2013 BCPC 276

Citation: R. v. Truong Date: 20131002 2013 BCPC 0276 File No: 58524-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND TRUONG RULING ON APPLICATION OF THE HONOURABLE JUDGE P. CHEN BAN ON PUBLICATION s. 517(1) CCC s. 486.5(1) CCC

Counsel for the Crown: G. Nelson Counsel for the Defendant: A. Nelson Place of Hearing: Richmond , B.C. Date of Hearing: September 27, 2013 Date of Judgment: October 2, 2013 [ 1 ] This is an application for judicial interim release. The Accused, Raymond Truong, and his co-accused, Donald Ryan Stalker, have been charged with the following offences, all alleged to have taken place in Richmond, British Columbia on August 11, 2013: Count 1 : kidnap B.X.L. using a firearm, with intent to confine B.X.L. against his will, contrary to Section 279(1.1)(a.1) of the Criminal Code .

Count 2 : kidnap J.L. using a firearm, with intent to confine J.L. against his will, contrary to Section 279(1.1)(a.1) of the Criminal Code . Count 3 : kidnap J.L., a person under the age of sixteen, with intent to confine J.L. against his will, contrary to Section 279(1.1)(a.2) of the Criminal Code . Count 4 : unlawfully confine B.X.L., contrary to Section 279(2) of the Criminal Code . Count 5 : unlawfully confine J.L., contrary to Section 279(2) of the Criminal Code . Count 6 : using a restricted or prohibited firearm, commit robbery of B.X.L., contrary to Section 344(1) (

a) of the Criminal Code . Count 7 : possess a loaded prohibited or restricted firearm, Sig Sauer 9mm handgun, without authorization or license to possess the firearm, contrary to Section 95(1) of the Criminal Code . Count 8: falsely represent themselves to be peace officers, contrary to Section 130(1) (

a) of the Criminal Code . [ 2 ] This ruling is in respect only to Mr. Truong as no submissions have yet been made by Mr. Stalker. [ 3 ] This bail hearing began before Judge Fratkin on August 23, 2013, but he is not able to continue because of illness. Counsel agreed to the application being made before me. At the invitation of both counsel, I read the transcript of the hearing before Judge Fratkin. However, on the day set for the continuation, it was decided to recommence the hearing from the beginning. The following facts are alleged by Crown.

Facts alleged by Crown [ 4 ] On Sunday, August 11, 2013 at about 2:20pm, a civilian Mr. C. called 911 to report a kidnapping. Mr. C. reported that, after exiting the elevator to the parkade of his apartment residence, he saw 4 males exit a vehicle about 30 feet in front of him, rush towards the victim, surround him, move his hands behind his back and push him into the back of an SUV. He could not see their faces and could not tell their gender or race as their backs were to him. He recognized the SUV as a vehicle that regularly parked in that parkade but did not recognize the victim. Mr.

C. hid behind a pillar and then got into his vehicle. He drove out of the parkade and phoned the police. The parkade services two residential apartment buildings as well as a hotel. Mr. C. parked his vehicle in a location that provided him a view of both exits to the parkade. He saw the SUV exit the parkade about 5 minutes later and pick up Mr. Truong who was waiting outside in an adjacent vacant lot. [ 5 ] Mr. Truong entered the SUV and took over the driver’s seat while Mr. Stalker slid over to the passenger seat. The SUV stopped and parked behind Mr. C.’s vehicle when police arrived in marked vehicles.

Constable Chan observed the SUV parked with its trunk open with an Asian male – Mr. Truong – sitting in the driver’s seat. At this point, Mr. Stalker had exited and walked to the rear of the SUV. He then walked back to the front of the SUV. Constable Chan observed Mr. Stalker sweating and his hands shaking, as he approached him. Constable Melaven then dealt with Mr. Stalker as Constable Chan turned his attention to B.X.L. who he observed in

the back seat with his hands in handcuffs. Constable Chan also observed B.X.L.’s 5 year old son J.L. sitting in a car seat in the rear of the SUV. B.X.L. informed Constable Chan that Mr. Stalker had pointed a gun at his head and placed him in handcuffs. [ 6 ] Constable Lee observed B.X.L. in handcuffs, arrested Mr. Truong and asked him to exit the SUV. Constable Lee searched Mr. Truong and located a cell phone and a set of keys on his person.

After seeing that Constable Chan was unable to unlock the handcuffs binding B.X.L. with his police handcuff key, Constable Lee suggested to Constable Chan that he try the handcuff key that had been located on the key ring taken from the search of Mr. Truong. Constable Chan took that key and was able to open B.X.L.’s handcuffs with it. [ 7 ] The police located a pair of black gloves on the ground under the rear bumper of the SUV.

Inside the trunk of the SUV, hidden from view and tucked under the front wheel of a child’s bicycle, was a Sig Sauer 9mm semi-automatic handgun loaded with 17 rounds in an oversized (prohibited) magazine. [ 8 ] Mr. C. stayed on the phone with 911 until after the police arrived and arrested Mr. Truong and Mr. Stalker. [ 9 ] B.X.L. has provided a number of statements to police including an August 16, 2013 KGB statement. The statements from B.X.L. included the following account of the incident. [ 10 ] B.X.L. is separated from his wife who is the registered owner of the SUV.

On August 11, 2013, he had parenting time with his 5-year old son, J.L., for the weekend. On Sunday, August 11, 2013, they woke around 9:30am and went out to do some errands. Around 2pm, J.L. was hungry so he decided they would go out for lunch. At the same time, he received a call from someone who required B.X.L. to deliver money to him at a casino. B.X.L. described himself as a “currency broker” who receives money wired to him from overseas to deliver to the senders when they arrive in Canada, to use for gambling at casinos.

On this occasion, he was to deliver a bag of cash in the amount of $300,000.00. [ 11 ] B.X.L. had just placed the bag of cash into the trunk of the SUV when he was suddenly surrounded by the perpetrators announcing that they were police and that he was under arrest. B.X.L. was pushed to the ground and his hands were placed in handcuffs. According to B.X.L., two of the perpetrators put a gun to his head as they told him, “ police, don’t move” . B.X.L. was then asked for his keys and his apartment number and asked if there was more money upstairs in the apartment. Two of the attackers then left with his keys.

When police searched B.X.L.’s apartment, they found that it had been completely ransacked and was in disarray. B.X.L. stated that one of the persons who pointed a gun to his head was the Caucasian person who stayed with him in the SUV, indicating Mr. Stalker. [ 12 ] As Mr. Stalker drove the SUV through the exit he held the gun in his right hand on his right thigh. He brandished it to B.X.L. telling him to keep his head down. B.X.L. could observe the gun the entire time he was in the vehicle. [ 13 ] B.X.L. believed initially that his attackers were police. Mr.

Stalker, after police arrived in marked cars even told B.X.L. “ you will be transferred to a marked vehicle now” . However, instead of opening the door to let B.X.L. and his son out and escorting them to the marked vehicles, Mr. Stalker walked to the rear of the SUV. [ 14 ] The police have investigated and searched a number of vehicles during the investigation. One of them is a BMW owned by Mr. Truong’s sister (“sister’s BMW”), another BMW that had been reported stolen a day or two earlier (“stolen BMW”). A third black BMW is owned by Mr.

Stalker’s girlfriend (“black BMW”). [ 15 ] Inside of the stolen BMW, police located the following: (

a) Clothing items including a black neck fleece and a black balaclava, (

b) A McDonald’s cup, (

c) Safeway receipt with Mr. Stalker’s name on it, (

d) box of handcuffs and an empty handcuff box with a serial number matching the serial number of the handcuffs used to bind B.X.L., (

e) keys to Mr. Truong’s sister’s BMW, (

f) medical reports from Vancouver General Hospital for Mr. Stalker. [ 16 ] Inside of the sister’s BMW, police located the following: (

a) marijuana bud and a marijuana joint, (

b) various clothing items, (

c) a traffic violation ticket for the stolen BMW dated August 11, 2013 at 9:53am. [ 17 ] The parkade provides secure parking for its residents through the use of computerized locks that are operated by use of fobs containing computer chips. The police have also reviewed the video surveillance system for the parkade and the computer that tracks fob usage in the days leading up to August 11, 2013.

[ 18 ] The police have tracked Mr. Truong’s sister’s BMW entering and leaving the parkade on numerous occasions between July 27 and August 11, 2013, with the use of a key fob associated to unit 1608. On two occasions, the building video surveillance shows Mr. Truong with an unknown male, believed to be associated to unit 1608, in the elevator and lobby of the building. [ 19 ] On August 10, 2013, the black BMW belonging to Mr.

Stalker’s girlfriend was observed on the surveillance system entering and leaving the parkade numerous times using the same key fob for unit 1608. [ 20 ] On subsequent examination of B.X.L.’s SUV, a GPS tracking device was located under the vehicle, attached to the lower control arm for one of the wheels. When opened, a flashing light on the device showed that it was still actively transmitting tracking information. B.X.L. and his wife both advised police that they did not place the tracking device on the SUV and did not know about it. Position of Crown and Defence [ 21 ] Crown seeks Mr.

Truong’s detention on both the secondary and tertiary grounds. [ 22 ] Mr. Truong seeks his release on $50,000.00 surety provided by his sister in Creston. Mr. Truong has no prior criminal history and has the support of his mother and 3 sisters, one of whom has written a letter of support for him. He resides with two of his sisters, Ann and Maureen, in his mother’s home which is owned by the eldest sister who is married and living in Creston. The Accused has presented the Court with a release plan which would have Mr.

Truong under 24-hour virtual house arrest, except when in the company of his mother or one of his sisters and with one of those family members with him in the family home at all times. Legislative Considerations [ 23 ] Section 515(10) states: “

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

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

b) where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, or any person under the age of 19 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

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

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence , including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more .” [ 24 ] The underlined portions above were added as the result of amendments to the Code in May of 2008. [ 25 ] If convicted on Count 3, kidnapping of a person under the age of 16 years, Mr.

Truong faces a minimum mandatory sentence of 5 years incarceration. [ 26 ] Mr. Truong is in a reverse onus situation as a result of being charged with kidnapping and robbery with the use of a firearm. Section 516(6)(a)(vii) states: “

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged (

a) With an indictable offence, other than an offence listed in

section 469, (vii) that is an offence under

section 244 or 244.2, or an offence under

section 239, 272 or 273, subsection 279(1) or 279.1, 344 or 346 that is alleged to have been committed with a firearm.” Analysis [ 27 ] With respect to the secondary ground, I still have concerns notwithstanding the release plan proposed by the Accused and notwithstanding that he has no prior criminal history. This was an organized criminal enterprise involving a team of criminals working together. It would appear that the target of the enterprise was the large amounts of cash handled by B.X.L. The ransacking of B.X.L.’s

apartment indicates that the perpetrators believed that yet more cash could be located there. Organized criminal activity in the LowerMainland of B.C. is fuelled by the enormous profits that stand to be gained by it – profits that can cause some to succumb to basetemptation and ignore the huge risks and dangers in perpetrating serious crimes. [28] The surety would be the sister living in Creston who has expressed confidence in the ability of her mother to supervise theAccused should he be released. However, I have very little information about the mother.

Two of the sisters who would be assisting themother to supervise the Accused attended the bail hearing but little information was provided about them as well. [29] At this time I am not satisfied that the Accused has satisfied the onus on him to show cause for his release on the secondaryground. I now turn to consideration of the tertiary ground. [30] In R. v.

Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309, McLachlin, C.J. discussed the tertiary ground and the relevantconsiderations as to denial of bail at paragraph 41: “This, then, is Parliament’s purpose: to maintain public confidence in the bail system and the justice system as a whole. The question iswhether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament has hedged thisprovision for bail with important safeguards. The judge must be satisfied that detention is not only advisable but necessary.

The judgemust, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judgecannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly onthe factors Parliament has specified.

At the end of the day, the judge can only deny bail if satisfied that in view of these factors andrelated circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidencein the administration of justice. In addition, as McEachern, C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), (BC CA), 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about “the philosophy ofthe legislative provisions, Charter values and the actual circumstances of the case” (p.274).

For these reasons, the provision does notauthorize a “standardless sweep” nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between therights of the accused and the need to maintain justice in the community. In sum, it is not overbroad.” [31] In R. v. Bhullar, 2005 BCCA 409, the detention of an accused under Section 515(10)(

c) was considered. Rowles, J.A. coinedthe expression “a constellation of exceptional factors” as being required in order to justify detention under this section. This phrase hasbeen used a number of times in decisions considering the tertiary ground for detention. [32] In R. v. Desmond, 2009 BCSC 1954, Pealman, J. allowed the accused’s appeal of a detention order by a judge of this Court. Mr. Desmond was alleged to be one of 3 young men who approached 3 young males and a young female, all 13 or 14 years old, in a parkin Surrey and robbed the males of various articles of clothing.

One of the perpetrators drew and brandished a handgun and used it tostrike one of the male victims. Threats were made to use the gun if the victims did not comply. The court below detained each of theaccused on both the secondary and tertiary grounds. [33] Pearlman, J. found that the release plan for Mr.

Desmond (which was not presented to the judge in the court below), including asurety in the amount of $75,000 and a curfew were sufficient to show cause on the secondary ground for his release. [34] In discussion of the tertiary ground, Pearlman, J. stated the following at paragraph 36: “The learned Provincial Court judge considered the four statutory factors under s.515(10)(c), but in my respectful view, erred by failingto assess whether this was a case involving exceptional circumstances, nor did the Provincial Court judge have before him the releaseplan proposed by the applicant on this review application.

In my view, an informed and reasonable person having regard to the terms ofthe release plan, including the surety to be posted by the accused’s mother, the curfew, and other restrictions imposed on the accused,the fact that the accused has no prior criminal record, as well as the circumstances of this offence, although serious, would not finddetention necessary to maintain confidence in the administration of justice. I find that this case lacks the constellation of exceptionalcircumstances that would warrant detention on the tertiary ground.

The accused has met the onus of showing that detention is notnecessary.” [35] With respect to the enumerated factors in S.510(10)(c), I find the Crown case to be strong. The Crown is not relying oncircumstantial evidence as was the case in Desmond. There is the eye-witness account of Mr. C. as well as the statements provided bythe victim, B.X.L. The child victim J.L., described by the Crown as quite an articulate 5-year old, also provided a statement thatcorroborated the account provided by his father. Mr.

C was on the phone to 911 from the time he exited the parkade until the arrival ofthe police and their dealings with the Accused, maintaining continuous observation of the SUV throughout that time. There is also theforensic evidence. The key for the handcuffs that were used to confine B.X.L. were found on the Accused’s key ring taken from hisperson after his arrest. The empty box from which those handcuffs came was found in the stolen BMW in which were also found thekeys for the Accused’s sister’s BMW. With respect to the firearm handled by Mr.

Stalker, B.X.L.’s statement was that he could see thegun during the entire time that he was confined in the back seat of the SUV. I would infer that the gun would have been visible to Mr.Truong after he took over the driver’s seat from Mr. Stalker. Mr. Truong was ultimately removed by police from the driver’s seat of theSUV in which B.X.L. and his son J.L. were confined. [36] The gravity of the offences for which the Accused has been charged, are very serious, including the kidnapping of a 5-year oldat gunpoint. [37] The circumstances of these offences, in my view, are exceptionally serious.

These perpetrators were not content with a robbery

of $300,000. Their plan included a kidnapping at gunpoint, in broad daylight on a Sunday afternoon - a day when many members of the public could be expected to be relaxing at home. It took place in a residential parkade, where members of the public could be expected to be getting in and out of their cars. The victims of the kidnapping included a 5-year old child. Guns were pointed at the head of the adult during the robbery and kidnapping. The perpetrators impersonated police officers while committing these offences.

The high- jacking of a vehicle and a break-in of a residential home were involved in the perpetration of these offences. The robbery involved a very large sum of money. There was evidence of considerable planning and premeditation, including the manner in which the offence was carried out, and including frequent use of a security fob to enter and exit the parkade on numerous occasions by both co-accused in the days leading up to these offences. There was also the use of firearms and handcuffs, and the fact that these would have been acquired in advance for use in this criminal endeavour.

Finally, there is the evidence of the tracking device placed on the underside of B.X.L.’s SUV that was still actively transmitting when opened by police. This was a directed, planned and focussed criminal venture, perpetrated by a team of criminals working together. In my view these circumstances, taken together, create a “constellation of exceptional factors”. [ 38 ] With respect to the last enumerated circumstance to be considered, the Accused is liable, on conviction to a potentially lengthy term of imprisonment.

Firearms were involved in these offences and the minimum term of imprisonment for Count 3 is five years. [ 39 ] In my view, the phrase “constellation of exceptional circumstances” as applied frequently by the courts of this province, stands for the proposition that detention on the tertiary ground would be relatively rare.

Even where the Crown case is strong, the offence is grave and an accused is subject on conviction to a lengthy period of imprisonment, that may still not be sufficient to elevate the circumstances to the point where detention is necessary to maintain confidence in the administration of justice. [ 40 ] In R. v. Eghtesad , 2012 August 17, Docket 26127, Vancouver Registry, Cullen, A.C.J. stated at paragraphs 70 – 72: As is clear from Justice Rowles’ observations in Bhullar , application of the tertiary ground is a principled assessment, based on the reaction of a reasonable and informed member of the public.

Because the circumstances of an offence and of a particular accused are often not known to the public and do not emerge from applications for judicial interim release which are subjected to publication bans, the Court must act, in effect, as proxy for a reasonable and informed member of the public. In such circumstances, the judge must base his or her decision not on either the presence or the absence of public clamour, but on an assessment of how a representative member of the public would react if he or she were fully informed of the circumstances and responding in a reasonable, not overly excitable, manner.

Decision [ 41 ] I find that detention is warranted on the tertiary ground.

In my view, appraising the circumstances of these offences objectively through the lens of the four factors enumerated in Section 510(10)(c), as instructed by the decision in Hall , I find that a reasonable and informed member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. [ 42 ] As for the requirement flowing from the decision of Rowles, J.A. in Bhullar , I am also satisfied that all of these circumstances described above, considered collectively, are sufficient to reach the standard of the “constellation of exceptional factors” required to justify detention on the tertiary ground. [ 43 ] Accordingly, I order that the Accused be detained in custody until dealt with according to law. _____________________ P.

CHEN, P.C.J.