R. v. Vu, 2015 BCSC 1073

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vu, 2015 BCSC 1073 Date: 20150622 Docket: 26074 Registry: Vancouver Regina v. Van Van Vu Before: The Honourable Madam Justice Fisher Reasons for Judgment Counsel for the Crown: M .Sheardown D. Sim S. Wagner C. Fedder Counsel for the Accused: B. Bagnall Place and Date of Trial/Hearing: Vancouver, B.C.

January 27-31, 2014 February 3-7, 11-14, 17-21, 24-28, 2014 March 4-7, 10-14, 17-21, 24-28, 31, 2014 April 1-4, 7-9, 14-17, 22-25, 28-30, 2014 May 1, 5, 9, 2014 June 18, 2014 September 2-5, 8-11, 22-25, 29,30, 2014 October 1-3, 8-10, 2014 December 19, 2014 April 13, 15, 16, 20, 27-30, 2015 May 1, 4, 6-8, 2015 Place and Date of Judgment: Vancouver, B.C. June 22, 2015 Table of Contents Introduction .. 5 Overview of the Crown’s case . 6 The nature of the evidence . 7 Eric Low .. 10 Surveillance . 12 GPS Tracking . 15 Cell tower . 15 DNA .. 17

PGP emails . 17 The narrative . 19 November 7 – 15, 2011 . 21 Wednesday, November 16, 2011 . 22 Thursday, November 17, 2011 . 25 Friday, November 18, 2011 . 28 Saturday, November 19, 2011 . 31 Sunday, November 20, 2011 . 35 Monday, November 21, 2011 . 39 Tuesday, November 22, 2011 . 41 Early morning . 41 To Brentwood Mall 42 After Brentwood Mall 43 The Tacoma . 45 The white Sienna . 46 The gold Sienna . 48 The evening . 48 Wednesday, November 23, 2011 . 49 Tracker movements . 49 Leading up to the incident . 50 The kidnapping . 53 Takedown of the gold Sienna . 58 The Tacoma . 59 PGP identities . 60 SpaceShuttle . 60 RodimusPrime . 63 BigCountry . 64 Golfman . 66 Mandingo . 68 The charges . 73 Conspiracy to kidnap – Count 1 . 74 The law of conspiracy . 74 a.

Stage 1 - Proving the existence of the conspiracy . 76 b. Stage 2 - Proving the accused’s probable membership . 77 c. Stage 3 - Proving the accused’s membership beyond a reasonable doubt . 78 Application of the law to Count 1 – conspiracy to kidnap . 79 a. Stage 1 – Has the existence of the conspiracy been proven? . 80 b. Stage 2 – Probable membership of Vu in the conspiracy . 83

c. Stage 3 – Membership of Vu in the conspiracy . 87 i. Probable membership of others . 87 ii. Membership of Vu beyond a reasonable doubt . 89 Conclusion on Count 1 . 94 Kidnapping with a weapon – Count 2 . 94 Party Liability . 95 a. Section 21(1) . 95 b. Section 21(2) . 96 Kidnapping – s. 279 . 97 Application of party liability . 98 a. Kidnapping . 98 b. Use of a restricted firearm .. 99 i. Operable firearm .. 99 ii.

Section 21(2) party liability . 101 Conclusion on Count 2 . 106 Assault with a weapon – Count 3 . 106 Assault causing bodily harm – Count 4 . 106 Conclusion .. 107 Appendix A .. 108 Probable membership of others in the conspiracy .. 108 McKinnon .. 108 Margison .. 111 Stephens . 113 Powers . 115 Sleigh .. 117 Introduction [ 1 ] On November 23, 2011, while walking to his car in a parking lot on Fraser Street in Vancouver, Eric Low was forced into a gold Toyota Sienna van by two men. The van drove away quickly.

The incident was observed by surveillance officers, who followed the van until it stopped about five minutes later at the rear of a residence a short distance away. John Powers and Cody Sleigh were found inside the van with Eric Low. Mr. Low was observed to have injuries to his face and head. Mr. Powers and Mr. Sleigh were arrested for kidnapping and other charges. [ 2 ] About two hours later the same day, a dark green Toyota Tacoma truck was stopped by police not far from the Fraser Street location. The driver was the accused Van Van Vu and the passengers were Troy McKinnon and Jesse Margison.

They were detained and then arrested for the kidnapping of Eric Low but released the following day without charges. On February 10, 2012, they were arrested again, along with another man, Derek Stephens, and these four were charged with conspiracy to kidnap Eric Low and other offences. [ 3 ] In August 2012, Mr. Margison was severely injured in an assault while in custody and he has since been declared unfit to stand trial.

He is now named in the indictment as an unindicted co-conspirator along with three other individuals. [ 4 ] After several months of voir dires, the trial commenced in January 2014 on an indictment against Mr. McKinnon, Mr. Stephens, Mr. Sleigh, Mr. Powers and Mr. Vu. It continued with few breaks to the end of April, when the Crown had substantially concluded its case. Due to various disclosure issues, the trial was adjourned until September 2014. The Crown completed its evidence and the defence then filed applications for a mistrial on the basis of late disclosure.

Those applications were dismissed on October 30, 2014 ( 2014 BCSC 2015 ), but leave was granted for the recall of some witnesses and for a limited re-opening of one voir dire. The trial

was then scheduled to resume in April 2015. It was difficult to obtain trial dates that accommodated the schedules of all five defence counsel. [ 5 ] Between January and April 2015, Mr. Stephens, Mr. McKinnon, Mr. Sleigh and Mr. Powers each changed their pleas to guilty. Accordingly, the trial resumed on April 15, 2015 against only Mr. Vu. [ 6 ] Mr. Vu is charged with conspiracy to kidnap, kidnapping with a firearm, assault with a weapon and assault causing bodily harm. [ 7 ] For ease of reference, I will refer to the accused and the alleged co-conspirators by their surnames only.

Overview of the Crown’s case [ 8 ] The Crown’s case against Vu on all counts in the indictment is based on a body of circumstantial evidence. [ 9 ] It is the theory of the Crown that a conspiracy to kidnap Eric Low was in place by no later than the first week of November 2011.

In proving the existence of the conspiracy, the Crown relies on evidence of the actions and words of the alleged co-conspirators, as well as evidence relating to the actual kidnapping of Eric Low on November 23, including the immediate manner in which he was abducted, items seized from the van in which he was confined, and tracking devices found on his vehicles. [ 10 ] The Crown alleges that Vu was a co-conspirator in this plan to kidnap Eric Low, and that he took a number of steps to move the plan forward, including:

a) driving the other co-conspirators around, both to and from surveillance points and to purchase items in preparation for the kidnapping; and

b) assisting in the surveillance of Mr.

Low by installing and removing GPS tracking devices on vehicles associated to him and providing tracking updates on those devices. [ 11 ] The Crown also maintains that Vu was a party to the kidnapping of Eric Low by aiding John Powers and Cody Sleigh, and that Vu knew or ought to have known that the use of a restricted firearm, an assault with a weapon and an assault causing bodily harm were probable consequences of carrying out the kidnapping. [ 12 ] For all counts, the Crown focuses on the chronology of events preceding and immediately following the kidnapping on November 23, 2011, relying on email communications among the alleged co-conspirators, intercepted communications, GPS tracking, and surveillance evidence.

The email communications were contained in encrypted accounts bearing pseudonyms. The Crown seeks to prove the identity of the co-conspirators who were communicating by email through circumstantial evidence that links particular individuals to these accounts. [ 13 ] Vu concedes there is circumstantial evidence of a common intention amongst some or all of the alleged co-conspirators but says that, at most, the evidence proves an agreement to commit a violent act in relation to Eric Low, not an agreement to kidnap him.

Vu also does not dispute that Eric Low was kidnapped on November 23 by Sleigh and Powers, and that Low sustained bodily harm as a result of being struck by a weapon (as defined in the Criminal Code ). However, he contends that the Crown has failed to prove that he aided in the commission of the alleged offences or that he had knowledge of the presence of a firearm in the vehicle on the day of the kidnapping. The nature of the evidence [ 14 ] The Crown led evidence from over 70 witnesses and entered volumes of exhibits.

Vu did not testify or lead any defence evidence. [ 15 ] Police officers testified about the crime scene where the kidnapping took place, as well as the various arrests and searches. These included: (

a) the arrests of Powers and Sleigh on November 23, 2011 and the search of the gold Sienna van; (

b) the arrests of Vu, McKinnon and Margison later the same day and the search of the Tacoma truck; and (

c) the arrests of Vu, McKinnon, Margison and Stephens on February 10, 2012 and subsequent searches conducted at residences associated with Vu and Stephens. Admissions were made about the accuracy of the audio recordings of intercepted communications, police dealings with Vu and others on their arrests on November 23, 2011, the conduct of searches of the residences, the continuity of some of the electronic exhibits, and various other matters. [ 16 ] Numerous items were seized during the searches. The following were seized from the gold Sienna:

a) a white HP laptop computer with a USB stick seized from the front passenger seat (the white HP laptop);

b) a Blackberry with an account in the name of “SpaceShuttle” seized from the rear seat;

c) a .45 Colt 1911 pistol seized from the floor; and

d) a backpack containing a pillowcase with two .45 calibre magazines in their packaging and a receipt for the same dated November 17, 2011; two zap straps; a shopping bag with eight individual .45 calibre rounds and 111 individual 9 mm rounds of ammunition; a balaclava and some gloves. [ 17 ] The search of the Tacoma yielded the following items:

a) a broken red Sony VAIO laptop seized from the rear floor (the red Sony laptop);

b) a Blackberry with an account in the name of “RodimusPrime” seized from the glove box; and

c) a Blackberry with an account in the name of “BigCountry” seized from the rear floor. [ 18 ] Phones and Blackberries were seized from the alleged co-conspirators. A Blackberry with an account in the name of “Mandingo” was seized from Sleigh.

Blackberries were also seized from Vu and Margison and a Huawei cell phone was seized from McKinnon. [ 19 ] Seized from a residence associated with Vu were identification documents for Vu and two of the unindicated co-conspirators, Ba Doan and Long Le, as well as an Alienware laptop computer and a case containing a tracking device, battery pack and wireless card. [ 20 ] Other exhibits included two black metallic boxes containing tracking devices. One was seized from the underside of Mr. Low’s vehicle (a white Mercedes) at the scene of the kidnapping. The other was seized from the underside of another of Mr.

Low’s vehicles (an Acura MDX) that was in the possession of the police. [ 21 ] Expert witnesses testified about the extraction of information from the two laptops, the Blackberries and the cell phones, as well as the nature of GPS tracking devices. GPS tracking information was extracted from the laptops and encrypted emails were extracted from the Blackberries and decrypted by the RCMP Technical Assistance Team.

No issue was taken about the manner in which this information was extracted. [ 22 ] Expert witnesses also testified about cell phone records and the location of cell towers, DNA evidence, and the functioning of the firearm that was found in the gold Sienna. Generally, the expert evidence was not seriously challenged. [ 23 ] Over 30 police officers testified about the surveillance they conducted between November 15 and 23, 2011. [ 24 ] Four witnesses testified about the kidnapping incident itself.

In addition to Eric Low, two witnesses were surveillance officers and one was a lay witness who was in the area at the time. [ 25 ] Other lay witnesses testified about surveillance video retrieved from several business locations, the purchase of ammunition from individuals identified as McKinnon and Margison, and the rental of white and gold Sienna vans by a person the Crown says was Stephens. Police officers also testified about statements made by John Powers to an undercover officer in cells on November 23 and to a police officer on November 24, 2011.

These statements were admitted only as against Powers. [ 26 ] The primary evidence upon which the Crown relies in its case against Vu are surveillance of the alleged co-conspirators, GPS tracking of vehicles and email messages exchanged among the co-conspirators in the week preceding the kidnapping and immediately thereafter. [ 27 ] Before I review the narrative of events, I will comment on my approach to the evidence. Eric Low [ 28 ] In his evidence in chief, Eric Low presented himself as a person employed in a family restaurant business.

His testimony in chief focused on the events of November 23, 2011 and what happened immediately before and during the kidnapping. [ 29 ] Mr. Low admitted to a criminal record that included convictions for possession of cocaine for the purpose of trafficking and driving while prohibited. He was cross-examined extensively about his record and other alleged criminal activities. He denied being involved in drug trafficking after 2008 despite information suggesting otherwise. Much of his evidence was internally inconsistent, and he ultimately admitted lying about various things. [ 30 ] The defence submitted that Mr.

Low should be treated as a Vetrovec witness. The Crown conceded that reliability and credibility issues arise from his evidence but submitted that Mr. Low does not meet many of the factors required for him to be considered a Vetrovec witness. [ 31 ] Mr. Low was the victim in this case. In such circumstance, a Vetrovec caution is discretionary. In R. v. Wood , 2007 BCCA 563 , the Court set out two primary considerations for determining whether such a caution is necessary: (

a) the extent to which the witness’ credibility is suspect; and (

b) the importance of the witness’ testimony to the Crown’s case. Other factors to consider, set out in R. v. Sipes , 2012 BCSC 1148 at para. 2 , are whether: • the witness is an accomplice; • the witness has opportunity to lie for personal benefit, including full or limited immunity from prosecution, or some other benefit; • the witness has a record of perjury; • the witness has a lengthy criminal record, including lengthy criminal record of dishonesty; • the witness has a history of substance abuse; • the witness is involved in other criminal activities; • the witness has a motive to lie by reason of connection to the crime or to the authorities;

• there is unexplained delay in the witness coming forward with the story; • the witness has provided different accounts on other occasions, including lying to the police; • the witness has lied under oath; and • the witness may be deflecting blame on another, or protecting another. [ 32 ] Mr. Low has a criminal record, and while it is not a long one, his evidence revealed continuing activities that are very suspect. He provided inadequate explanations about how he was able to support his lifestyle on the salary he purported to make at his family’s restaurant.

He provided different accounts about aspects of the kidnapping incident and what he was doing before he arrived at 50 th Avenue and Fraser Street that morning. He also admitted lying under oath. [ 33 ] Mr. Low’s evidence forms only a part of the Crown’s case, but I found his credibility to be suspect in many ways. He contradicted himself about so many things that ultimately, I found it difficult to believe much of what he said. [ 34 ] As such, I have treated him as a Vetrovec witness and have looked to evidence from other sources that tends to show that aspects of his testimony are credible.

In doing so, I have kept in mind the requirements for independent and material evidence, as summarized by Watt J.A. in R. v. Roks , 2011 ONCA 526 at paras. 64-66 , (and adopted in R. v. Khan , 2011 BCCA 382 at para. 43 ): [64] The independence requirement insists that to be confirmatory, evidence must not be "tainted" by connection to the Vetrovec witness: Khela , at para. 39. [65] To satisfy the materiality requirement, confirmatory evidence need not implicate the accused: Khela , at paras. 40-41; Kehler , at para. 16.

The materiality requirement is met where the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can be trusted in his or her assertion that the accused is the person who committed the offence: Khela , at para. 42; Vetrovec , at p. 833.

Where the only issue in dispute is whether the accused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth in that regard before convicting on the basis of the Vetrovec witness' evidence: Khela, at para. 43. [66] It is worth reminder that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth: Khela , at para. 37; Kehler , at para. 22; Sauvé , at para. 82.

Surveillance [ 35 ] Evidence from surveillance officers formed a substantial part of the Crown’s case. Given the nature of this evidence, officers necessarily relied on their notes to refresh their memories of what they observed on specific days. Because surveillance officers work in teams, their notes were contained in “master notes” that became surveillance reports for each team on each shift. [ 36 ] The master notes were prepared by a team member designated master note taker, or scribe, for a shift. The master was also a driver, and carried a laptop computer in his or her vehicle.

Each surveillance officer, carrying a radio, broadcast his or her observations to a common radio channel. The master recorded the broadcasts on the laptop as they came in. Some masters recorded the broadcasts on a digital recorder, particularly when events unfolded quickly, but most simply typed in the time and substance of the broadcasts at the time they were made or as soon as they were able to do so. The time recorded in the master notes was the time the master heard the broadcast.

In general, officers broadcast their observations at the time they were making them. [ 37 ] At the end of a shift, the laptop was handed around to the members of the team to review the notes made of their observations. Members would review the observations attributed to them and make any changes they considered necessary. Draft notes were not retained. The master would then print the notes and the members would review those again and sign off on what was written. The general practice of the surveillance teams was to review and sign off on the master notes right after a shift or within 24 hours.

However, it was not always possible to do so and some notes were not signed off for several days. [ 38 ] At the beginning of a shift, the master entered certain information into the computer, such as full names of targets, known addresses and known vehicle licence plate numbers. This information would be prefilled, so that the master would type only a unique letter or number for a name, address or plate number.

During a shift, the master had access to databases on which to check new information such as addresses or licence plate numbers. [ 39 ] All of the surveillance officers clearly relied on the master notes in order to refresh their memories about specific observations and times, some more than others. In a few instances, officers had no independent memory of their observations, and the notes attributed to them were admitted as past recollection recorded. Some surveillance reports were admitted into evidence for the limited purpose of establishing the times when certain observations were recorded.

Officers testified that the times recorded generally accorded with their memory. [ 40 ] During a shift, surveillance officers communicated through common radio broadcasts. On occasion they exchanged email or text messages, which were generally cryptic and difficult to relate to a particular observation or event.

After a shift, officers sometimes prepared addenda to their observations either to add more information for events that occurred too quickly to make any detailed broadcasts or to correct an error that had been missed at the time the notes were reviewed. [ 41 ] Throughout the trial, the defence challenged surveillance officers about the accuracy of many of their observations, particularly their identification of target individuals and vehicles and the times the observations were made. Sometimes an officer’s identification of a target appeared to be weak.

There was one instance where a male was mistakenly identified as Vu, but this was subsequently corrected. There were a few instances where a licence plate number was recorded inaccurately. Some of the surveillance reports were not signed off

by the team members for several days after the end of a shift. [ 42 ] Despite these apparent weaknesses, I found the evidence of these officers overall to be reliable and accurate. As individuals, they were professional in their approach and many were very experienced. As teams, they were able to maintain continuity of a target individual or vehicle such that their identifications were either confirmed or corrected.

The surveillance reports were carefully prepared and I consider them sufficiently reliable to justify the officers’ reliance on them to refresh their memories about particular times, places and observations (and in a few instances, to justify admitting the recorded observation itself as past recollection recorded).

I found most of the times referred to by these witnesses to be accurate within a short window of time when assessed in relation to other evidence. [ 43 ] In final submissions, defence counsel suggested that a witness’ failure to testify about everything he or she observed as recorded in the surveillance reports weakened the evidence of that witness, arguing that either the report or the testimony was inaccurate. I cannot accept such a suggestion.

The witnesses were not questioned about every observation they made on a particular day, and the surveillance reports were not admitted for their truth (unless as past recollection recorded) but for the limited purpose described above. [ 44 ] All that said, I have been careful in relying only on evidence from surveillance officers that reflects not only clear observations of individuals and vehicles but also continuity of those observations among the members of the same team and between teams passing off and taking over surveillance.

In these reasons, I refer to the precise times that were mentioned in the evidence, but I do so on the basis that these times are approximate within a period of several minutes. GPS Tracking [ 45 ] The tracking devices found on Eric Low’s vehicles were a type known as WorldTracker Enduro Pro GL200 and each contained a KORE Wireless SIM card.

The trackers and the SIM cards contain unique identifiers, called “IMEI” numbers for the trackers and “ICCID” numbers for the SIM cards. [ 46 ] The tracker found on the Eric Low’s white Mercedes had an IMEI number ending with 098965 and the tracker found on his Acura had an IMEI number ending with 209869. I will refer to the trackers by these identifying numbers. [ 47 ] WorldTracker Enduro Pro tracking devices are powered by batteries which are recharged through a built-in mini USB port and sold with wall chargers.

Users access the data gathered by these devices on internet webpages that convert the data to tracking points on a map. The devices are programmed to report battery levels, which users can also view on a webpage. [ 48 ] Emails regarding the activation of Trackers 098965 and 209869 and raw GPS tracking data from these trackers were extracted from the white HP laptop that was seized from the gold Sienna. The emails were addressed to individuals employed by a company doing business as “trackingtheworld.com”.

Raw tracking data from Tracker 098965 for November 21 and 23, 2011 and visits to a customer page at “trackingtheworld.com” between November 15 and 23, 2011 were also extracted from the red Sony laptop that was seized from the green Tacoma. [ 49 ] The raw tracking data was converted to tracking maps which show the location of these trackers on specific days at specific times. The tracking maps entered in evidence relate to various locations between November 17 and 23, 2011. Many of these maps are consistent with the observations of surveillance officers.

Cell tower [ 50 ] The cell phone seized from Vu on November 23, 2011 held the number 604-368-8472. Rogers Communications call detail records for this number were entered as evidence and explained by David Mak, who was qualified as an expert in the operation and configuration of the Rogers cellular network.

These call detail records provide information including the date and time a call or text was sent or received, the duration of the call, and the identification of the cell tower that serviced the call or text. [ 51 ] In most cases, the cell tower utilized is the one closest to the cell phone user, but sometimes, due to geography or busy cell sites, it will be second closest to the user. The average cell tower range in urban areas is from a few metres to about 3 ½ kilometres.

In an urban area like Metro Vancouver, there are many cell towers, such that, for example, a caller located in downtown Vancouver would not utilize a cell tower in Richmond. Signal strength can vary between sectors, and if a cell phone is equidistant between two towers, it will use the tower with the strongest signal.

If the user is mobile, the signal will move to other towers as the user moves, but the records reflect only the first cell tower used. [ 52 ] The defence says that the evidence of cell tower usage may be misleading in its particulars because it provides only a very general pattern of movement when communications are being made to and from the cell phone. I accept that may be so, but I have found this evidence to be reliable when it is consistent with other evidence. For example, on some occasions, Vu was seen by surveillance officers during the same time period that his cell phone was using a nearby cell tower.

On other occasions, he was seen driving a vehicle shortly before or after his cell phone was using a tower nearby the location of the vehicle. Some of the tracking evidence and PGP messages are also consistent with evidence about the location of cell towers being used by Vu’s cell phone. [ 53 ] The defence also points out that cell phones can be readily passed from one person to another, and thus the location of a phone does not necessarily demonstrate the identity of the person in possession.

I appreciate that cell phones may be passed around, but as I find below, it would be speculative to infer that someone other than Vu was using his cell phone at times when the cell tower location is consistent with other evidence showing he was present nearby that location. DNA [ 54 ] Vu’s DNA was found on the keyboard of the red Sony laptop. It was taken from a swab of about one nanogram of biological

material. [ 55 ] The defence says that this evidence is of no significance, in part because of the microscopic amount of DNA recovered and in part because of the possibility of transference due to the manner in which the exhibit officer seized the red Sony laptop. Cst. Gill, the exhibit officer, used a single pair of gloves while seizing items from the Tacoma on November 23, 2011. [ 56 ] In my view, the amount of DNA used to obtain Vu’s DNA profile does not reduce the significance of this evidence. Katherine Murphy, who was qualified as an expert in the

interpretation of DNA typing and analysis, testified that the minimum amount of biological material that could be used to obtain a DNA profile was .25 nanogram, but the usual amount is one nanogram. However, as Ms. Murphy acknowledged, the exhibit officer’s failure to change gloves does raise the possibility of transference of DNA from other objects he handled. I accept that this may reduce the significance of the evidence but only in a minor way. Cst.

Gill testified that he handled the red Sony laptop “very minimally” by picking it up by the edges and placing it in a brown paper bag. [ 57 ] The presence of Vu’s DNA on the laptop does not establish how it got there or how much contact he had with it. PGP emails [ 58 ] Four of the Blackberries seized on November 23, 2011 contained encrypted data through subscriptions to a service called “Pretty Good Privacy” or PGP. Three of the Blackberries were analyzed by the RCMP’s Technical Assistance Team in Ottawa and the contents were decrypted and reports prepared.

The reports provided the texts of email communications sent to and from the devices and the dates and times the messages were sent or received. The names indicated were names from the address book in the device, which sometimes contained more than one name for an address. The reports also indicated whether the messages had been deleted or were active. Messages which had been deleted were recoverable if they had not been overwritten with other data. [ 59 ] The three devices analyzed related to accounts in the following names:

a) Mandingo@xsecure.com;

b) RodimusPrime@privatevault.cc; and

c) BigCountry@privatevault.cc. [ 60 ] These three devices were found to have communicated with each other and with two other accounts: Golfman@microsecure.cc and SpaceShuttle@privatevault.cc. They were also found to have had their dates and times synced such that the same dates and times for messages sent or received were very close. [ 61 ] The same messages were contained in reports for both devices that were communicating with each other unless they had been deleted from one device that rendered them unrecoverable.

As a result, the messages in evidence are not a complete record of the communications among these users, but the volume is substantial. [ 62 ] The Blackberry with the account SpaceShuttle@privatevault.cc was one of the four devices seized. Its contents were not decrypted but many PGP messages contained in the device were photographed. A Blackberry with the account Golfman@microsecure.cc was never recovered. [ 63 ] The PGP messages contain many statements by the users that are relevant to the issues in this trial.

Many of the messages contain statements alleged to be in furtherance of the conspiracy and are admissible only for limited purposes unless the co-conspirators exception to the hearsay rule applies. I have been careful to consider only statements that in their context relate to the plan in respect of Eric Low, as there are also statements that appear to relate to the tracking of other persons. [ 64 ] In order to make sense of the circumstantial evidence, it is important to identify which alleged co-conspirator is associated with each PGP account.

When considered in the context of other evidence, inferences of identify can be drawn from many of the PGP communications. For reasons that I will explain later, I am satisfied that the evidence establishes that:

a) SpaceShuttle@privatevault.cc was used by Powers and occasionally by Sleigh;

b) RodimusPrime@privatevault.cc was used by McKinnon;

c) BigCountry@privatevault.cc was used by Margison;

d) Golfman@microsecure.cc was used by Stephens; and

e) Mandingo@xsecure.com was used by Vu until about 9:35 am on November 22, 2011 and thereafter by Sleigh. [ 65 ] Many of the communications, when considered in the context of other evidence (particularly surveillance) and the entire narrative, provide cogent evidence from which I have made these findings of identity. The narrative [ 66 ] Set out here is a chronology of the evidence in relation to the week preceding the kidnapping, the kidnapping itself, and the events which immediately followed. In order to make this narrative easier to follow, I will first describe the vehicles and places that appear throughout.

[ 67 ] There were five target vehicles observed by surveillance between November 16 and 23, 2011, to which I will refer as follows:

a) a gold Infiniti SUV with BC licence #166NEK registered to Vu (the gold Infiniti);

b) a silver Acura MDX with Alberta licence #GSY906 (the silver Acura MDX);

c) a green Toyota Tacoma truck with BC licence #AE0509 (the Tacoma);

d) a white Sienna van with BC licence #941LLJ (the white Sienna); and

e) a gold Sienna van with BC licence #947XDS (the gold Sienna). [ 68 ] There were also two vehicles associated with Eric Low: a white Mercedes SL 63 with BC licence #616NFX (the white Mercedes) and an Acura MDX with BC licence # 386NDM (I will refer to this vehicle as Low’s Acura to avoid confusion with the silver Acura MDX). Mr.

Low also used a rental Mercedes GLK 350 with BC licence # 843PBX for two days while his white Mercedes was being serviced. [ 69 ] At the material times, Eric Low lived at 5167 Sidley Street in Burnaby, which is located south of Imperial Street and about one block west of Royal Oak Avenue. [ 70 ] Vu was associated to a residence at 4028 Knight Street in Vancouver, which is located at King Edward Village southeast of the intersection at Knight and Kingsway. He was seen coming and going from that residence numerous times and the vehicles he drove were seen parked in its vicinity.

His wallet, passport, BC identification, social insurance card and Medical Services Care Card were found there in Suite 709 when it was searched in February 2012. Although the address contained in some of Vu’s identification documents was a different one, from all of this evidence I have drawn an inference that Vu was living at 4028 Knight Street at the material times, at least on a temporary basis. [ 71 ] Powers was associated to a residence at 7063 Hall Avenue in Burnaby, which is located just north of Kingsway.

He was seen coming and going from that residence and was heard in intercepted communications talking from Suite 1905. From this, I have drawn an inference that Powers was living at 7063 Hall Avenue at the material times, likely on a temporary basis given the evidence that he went back and forth to Mission. November 7 – 15, 2011 [ 72 ] Between November 7 and 15, Mandingo (Vu) and RodimusPrime (McKinnon) exchanged numerous PGP messages about a plan that week which involved tracking someone referred to as “E”.

For example: Monday, November 7: Mandingo to RodimusPrime (RP) 6:23 p.m. – “On to the next one lol” RP to Mandingo 6:24 p.m. – “Yeah E this week.” Mandingo to RP 6:27 p.m. – “Yep” Thursday, November 10: RP to Mandingo 8:35 p.m. – “Hey bro. You wanna go see E mon or tues. Just do it the same place the last one fucked up?” Mandingo to RP 8:37 p.m. – “Ya I don’t care but I don’t really want to be at that place” Saturday, November 12: RP to Mandingo 10:50 p.m. – “Hey bro. What are you up to tomorrow?

You wanna go switch the battery on the one and go put one on E tomorrow night?” Mandingo to RP 10:50 p.m. – “Ya I’m down” Sunday, November 13: RP to Mandingo 2:23 p.m. – “Are the tracker and the battery you have fully charged?” Mandingo to RP 2:27 p.m. – “Ya I only got 1 tacker dj got the rest” RP to Mandingo 2:29 p.m. – “Yeah I know.

But we only need the small one for E and we can use the battery to switch the one on the other guy.” Mandingo to RP 2:31 p.m. – “Ya ill charge the small thing in a bit” [ 73 ] PGP messages were also exchanged between RodimusPrime (McKinnon) and Golfman (Stephens), indicating that Golfman (Stephens) was involved in providing tracking devices and batteries. [ 74 ] During the evening of Monday, November 14, RodimusPrime (McKinnon) and Mandingo (Vu) exchanged PGP messages about putting “the Tracker on E a little later”. Subsequent messages exchanged between 12:50 and 1:35 early the next morning referred to a

meeting at “coq centre”. Tracking data for Tracker 098965 shows this tracker near Coquitlam Centre Mall at 1:37 am. Jesse Margison and Shawn Roming were heard right after in intercepted communications talking about meeting at “Mr. Lube”. Tracker 098965 was in the same area as a Mr. Lube on Barnet Highway just west of Coquitlam Centre at that very time. A few hours later, RodimusPrime (McKinnon) sent a message to BigCountry (Margison) about “the sl” being back. As indicated above, one of the vehicles used by Mr.

Low was a white Mercedes model SL 63. [ 75 ] RodimusPrime (McKinnon) also sent messages to Mandingo (Vu) and Golfman (Stephens) about a tracker with a “hotmale” account. Data recovered from the white HP laptop shows a link between Tracker 098965 and the email address “hotmale111@hotmail.ca”. [ 76 ] Just before 7:00 am on Tuesday, November 15, Powers was heard in an intercepted communication saying, “Just got a job today that’s really important, it’s big”. Later that day, he was observed outside 7063 Hall Avenue.

Around the same time, RodimusPrime (McKinnon) sent a message to SpaceShuttle (Powers) that he was “outside” and a white BMW M6 was seen pulling up to the front of the residence. Margison got out of the vehicle and walked with Powers towards the underground parking lot.

The BMW was then seen leaving the underground, after which Powers was heard in an intercepted communication telling his wife, “I gotta wait til tomorrow morning”. [ 77 ] RodimusPrime (McKinnon) exchanged numerous messages with Mandingo (Vu) during the afternoon and evening of November 15 with respect to switching batteries, switching a truck “for the 6” and providing a “pic of him” to “show the kids what he looks like”. A photograph of Eric Low and his family was retrieved from internet cache files in the white HP laptop.

Wednesday, November 16, 2011 [ 78 ] On the morning of Wednesday, November 16, RodimusPrime (McKinnon), Mandingo (Vu), SpaceShuttle (Powers) and Golfman (Stephens) exchanged PGP messages making plans to meet. [ 79 ] At about 10:30 am, they were observed with two others at a White Spot restaurant on Kingsway having breakfast. Powers, Margison, McKinnon and an unidentified male were seated at one table, and Stephens and an unidentified Asian male were seated at another. [ 80 ] A surveillance officer was positioned outside the White Spot and took video of the six males as they exited the front entrance at 10:42 am.

The video shows the men gather briefly and walk towards a gold Infiniti. Vu can be seen clearly, along with Powers, McKinnon, Margison and Stephens. The sixth male was identified later as Cody Sleigh. Vu, Powers, McKinnon and Margison got into the vehicle. Stephens and Sleigh continued to walk south and out of view. [ 81 ] At 10:47 am, the gold Infiniti was seen stopped on Antrim Avenue in Burnaby, close to the white Sienna van. A man got into the white Sienna, and both vehicles then drove away southbound.

This area of Antrim Avenue was four to five blocks east of Eric Low’s residence. [ 82 ] A minute or so later, the gold Infiniti was at Imperial Street and Royal Oak Avenue. McKinnon was the front passenger and an Asian male was observed to be the driver. [ 83 ] At around the same time, the white Sienna with two men inside was seen parked behind a VanCity on Imperial Street at Royal Oak Avenue. The vehicle drove away at 11:19 am.

The surveillance officer’s description of the men’s clothing was consistent with the appearance of Powers and Sleigh in the video taken in front of the White Spot less than an hour before. [ 84 ] This was followed by an exchange of PGP messages between RodimusPrime (McKinnon) and SpaceShuttle (Powers) indicating that SpaceShuttle (Powers) and another person were tracking someone but had to shut their activities down due to the presence of the target’s wife: RP to Spaceshuttle 11:55 a.m. – “You guys watching the cpu?” Spaceshuttle to RP 11:57 a.m. – “Ye we on it bro” RP to Spaceshuttle 12:34 p.m. – “Hey.

Has he left his house?” Spaceshuttle to RP 12:40 p.m. – “Ye were downtown right now.” RP to Spaceshuttle 12:41 p.m. – “Don’t DT with a bunch of people around. Always tomorrow. Don’t want it called in.” Spaceshuttle to RP 12:45 p.m. – “We found him” RP to Spaceshuttle 12:47 p.m. – “K is it a safe scenario. Don’t get it called in seriously if there is a bunch of witnesses wait for your next opportunity” Spaceshuttle to RP 12:49 p.m. – “We have his car in sight in a underground” RP to Spaceshuttle 12:49 p.m. – “KK.

If its good do it.” RP to Spaceshuttle 12:54 p.m. – “Is it a busy underground?” RP to Spaceshuttle 12:55 p.m. – “You sure you don’t have to pay anyone on the way out?” Spaceshuttle to RP 12:55 p.m. – “Yup its not a buzy one”

RP to Spaceshuttle 12:56 p.m. – “K bro. Awesome” Spaceshuttle to RP 12:56 p.m. – “K ill text u soon” RP to Spaceshuttle 12:57 p.m. – “Make sure he is alone to bro.” Spaceshuttle to RP 1:38 p.m. – “its his fucking wife” RP to Spaceshuttle 1:40 p.m. – “Wow. Shut it down till tomorrow. Meet where you picked up the van.” [ 85 ] At about 3:00 pm that afternoon, the gold Infiniti was in the area of 7063 Hall Avenue. Margison was in the front passenger seat and an Asian male was the driver.

Cell tower evidence indicates that the Blackberry which had been seized from Vu on November 23, 2011 (which I will refer to as Vu’s cell phone) was using a cell tower very near this location. Vu was the only Asian male associated with the gold Infiniti and with the group that day. [ 86 ] A short while later, the vehicle was observed in the parking lot of a McDonald’s at Hall Avenue and Kingsway. Powers was seen crossing Hall Avenue and walking up the front steps of his residence.

At 3:12 pm he was heard on an intercepted communication saying to an unknown male, “I just got in from the fucking cold and I didn’t even make anything until tomorrow… it’s gonna be good but the thing is there was someone else instead of him”. [ 87 ] That evening, Powers was heard on an intercepted call with his wife saying, “I have to go back to work in the morning because it was the wrong person today”, and again later, “this has to happen, it would happen today but the only thing, it wasn’t him driving his vehicle”.

Thursday, November 17, 2011 [ 88 ] On Thursday morning, November 17, Mandingo (Vu), RodimusPrime (McKinnon), Golfman (Stephens) and SpaceShuttle (Powers) again exchanged PGP messages about meeting up. [ 89 ] Also that morning, Eric Low was at a Mercedes dealership on Verdun Place in Richmond, where he left his white Mercedes and obtained a loaner vehicle, the Mercedes GLK 350. [ 90 ] At 12:07 pm, the silver Acura MDX was observed on Antrim Avenue. Sleigh exited the passenger side and got into the white Sienna, which was parked on Antrim.

At 12:19, McKinnon was seen getting into the passenger seat of the silver Acura MDX while it was parked at a gas station on Kingsway. The Acura MDX was next seen at 12:42 pm in a parking lot near Metrotown Mall. Three men, two of whom were identified as Vu and Margison, exited the vehicle and walked to Chapters. Vu, Margison, McKinnon and another man later identified as Stephens were observed at the Starbucks located inside the Chapters store. The four men left together at about 12:50 and were seen getting into the silver Acura MDX. Vu was the driver.

A surveillance officer took a short video of the four walking across the parking lot. Although the officer described Stephens as carrying a grey laptop under his arm, the video shows that a portion of the laptop was red. Margison, McKinnon and Stephens are in clear view in the video but Vu is not. [ 91 ] At around the same time (12:50 pm), Powers was observed driving the white Sienna in Richmond in the vicinity of the Mercedes dealership where Eric Low had taken his white Mercedes earlier in the day.

PGP messages between SpaceShuttle (Powers), BigCountry (Margison) and RodimusPrime (McKinnon) at the time refer to “the white car” at “the benz dealership”: SpaceShuttle to BigCountry 12:54 p.m. – “Yo bro the white car is at benz dealership has been for a while. The other one is flyin all over Burnaby u think we shud go follow other whip?” [message forwarded by SpaceShuttle to RodimusPrime 12:55 pm] RP to SpaceShuttle 1:01 - “Just chill in rich.

We are on our way.” BigCountry to SpaceShuttle 1:02 p.m. – “Is the car just sitting there?” SpaceShuttle to BigCountry 1:03 p.m. – “We can’t see it” SpaceShuttle to RP 1:12 p.m. – “Are u guys here” RP to SpaceShuttle 1:15 p.m. – “We are at the dealership. Don’t come here though. Where are you” SpaceShuttle to RP 1:18 p.m. – “Just in parkin lot at end of the street” RP to SpaceShuttle 1:20 p.m. – “It’s here in the lot.” [ 92 ] While these messages were being exchanged, surveillance officers saw the white Sienna park on Verdun Place and the silver Acura MDX pull up and park beside it for a couple of minutes.

Vu and Margison were then observed in the parking lot of the Mercedes dealership. Margison appeared to hand an object to Vu, who crouched down between a white and a silver Mercedes near the rear wheel well. Vu then stood up, rejoined Margison and followed him to the Acura MDX. Surveillance video from the Mercedes dealership which captured the movements of two men who look like Vu and Margison is consistent with the surveillance officer’s observations.

Although Vu walks out of camera view briefly, he can be seen emerging from behind the rear of a white vehicle. [ 93 ] The surveillance officer checked the two vehicles in the area where he had seen Vu crouching. The white Mercedes had licence plate #616NFX, which is the vehicle driven by Mr. Low. There was no tracking device on the vehicle.

[ 94 ] SpaceShuttle (Powers) and RodimusPrime (McKinnon) had a brief PGP exchange shorty after this: SpaceShuttle to RP 1:32 p.m. – “Bro did u grab the tracker” RP to SpaceShuttle 1:33 p.m. – “Yeah.” [ 95 ] By 1:45 pm, the white Sienna was back parked on Antrim Avenue, and the silver Acura MDX was seen not long afterwards in the vicinity of 7063 Hall Avenue. Powers was heard in an intercepted communication saying to his wife, “the kid has a horseshoe up his ass, so now tomorrow, same time”. [ 96 ] That afternoon, the silver Acura MDX was seen at several locations in New Westminster and Vancouver.

At around 2:30 pm, Margison and another male were observed leaving Wesley’s Military Surplus on Front Street in New Westminster and getting into the Acura MDX. Ten minutes later, Margison and McKinnon were seen exiting Dave’s Surplus on Kingsway and 8 th Avenue and again getting into the Acura MDX, with Vu driving. The vehicle was next seen headed west on Kingsway with Vu driving, an unidentified male in the front passenger’s seat, and Margison and McKinnon in the rear.

Shortly after 3:00 pm, the Acura MDX was seen parked in the alley behind Reliable Guns, located on Fraser Street in Vancouver between 16 th and 17 th Avenue. [ 97 ] Video surveillance from Reliable Guns shows McKinnon and Margison inside the store and McKinnon purchasing two Remington 1911 magazines. Hermes Lee, the employee who served McKinnon, confirmed that the receipt for the purchase was date stamped November 17, 2011 at 3:18 pm. Margison and McKinnon exited the store, walked south on Fraser Street and then headed west on East 17 th Avenue.

Between 3:14 and 3:20 pm, Vu’s cell phone was using a cell tower located near Mount St. Joseph’s Hospital, which is just west of Fraser Street at East 15 th Avenue. At 3:20 pm, the silver Acura MDX was seen driving north in the alley behind Reliable Guns, crossing 16 th Avenue and eventually making its way eastbound on Kingsway. [ 98 ] At 3:36 pm, RodimusPrime (McKinnon) sent a PGP message to SpaceShuttle (Powers) telling him to “Bring another 16 .45 cal rounds tomorrow”. [ 99 ] The silver Acura MDX was next seen at about 4:10 pm in front of the Port Coquitlam Courthouse.

Margison and McKinnon got out of the vehicle, which then headed northbound with Vu in the driver’s seat and an unidentified male in the passenger seat. Between 4:48 and 5:30 pm, the Acura MDX was seen parked at the rear of Sam’s Hair Salon at 3395 Kingsway. Vu and an unknown male were seen inside the salon, the unknown male described as wearing a dark coloured hoodie with white sleeves, black pants and a black or dark baseball cap.

T his description is consistent with the clothing worn by Stephens in the surveillance video taken earlier at Metrotown. [ 100 ] Between 5:13 and 5:47 pm, Mandingo (Vu) and RodimusPrime (McKinnon) exchanged PGP messages about dropping off a tracker and meeting later on. Later that evening, they had this exchange: Mandingo to RP 8:28 p.m. – “U left those clips in my car bro” RP to Mandingo 8:31 p.m. – “I know.

Need them tomorrow.” Mandingo to RP 8:33 p.m. – “Ill drop it off later wen I pick up the tracker” RP to Mandingo 8:34 p.m. – “Why we need them tomorrow.” Mandingo to RP 9:03 p.m. – “I’m going to meet u later to grab the tracker off u?” RP to Mandingo 9:04 p.m. – “Kk.” Friday, November 18, 2011 [ 101 ] There were further communications between Mandingo (Vu) and RodimusPrime (McKinnon) in the early morning hours of Friday, November 18 that were indicative of a meeting between the two near “Coq Centre” around 1:40 am.

According to tracking data, Tracker 098965 moved from an area near Coquitlam Centre at 1:42 am to an area near Mr. Low’s residence on Sidley Street at 2:07 am. At 2:14 am, Mandingo (Vu) sent a PGP message to RodimusPrime (McKinnon) saying, “ Hey bro sl not there he got a glk it was park infornt so I slap it on that”. [ 102 ] Just after 9:00 that morning, Vu, driving the silver Acura MDX, was seen picking up Stephens from his downtown residence.

At 9:24 am Golfman (Stephens) sent a PGP message to RodimusPrime (McKinnon), “He’s on the move already been somewhere for 30 mins ill msg u when we’re pulling up to future shop”. Tracking data shows that Tracker 098965 moved from Sidley Street at 8:18 am to an area near East 3 rd Avenue and Renfrew where it stopped for about 30 minutes from 8:52 to 9:26 am. [ 103 ] At 9:45 am, the silver Acura MDX was seen pulling over on Imperial Street. At the same time, Golfman (Stephens) sent a PGP message to RodimusPrime (McKinnon), “Looks like guys on his way to whistler right now hopefully not going up there for wknd”.

At 9:48 am, Vu and Stephens were observed in the parked silver Acura looking down into Stephens’ lap. At 9:54 am, Golfman (Stephens) sent another message to RodimusPrime (McKinnon), “He’s heading up to cypress for the day fml”. [ 104 ] Tracking data indicates Tracker 098965 was moving towards Cypress Mountain at these same times. [ 105 ] At 10:10 am, the silver Acura MDX was observed in a parking stall at Station Square Mall in front of the Future Shop. Margison, McKinnon and an unidentified male were seen leaving the mall and getting into the vehicle.

Cell tower evidence shows that Vu’s cell phone was using a tower at the Burnaby Library on Kingsway in the vicinity of Station Square Mall.

[ 106 ] Meanwhile, between 9:58 and 10:30 am, RodimusPrime (McKinnon) was sending PGP messages to SpaceShuttle (Powers) with instructions about bringing “chunks in bags” and “clips”. At 10:29, Powers was heard on an intercepted communication telling his wife, “I don’t even know if this score’s happening today, cause I think he’s up at Cypress Mountain snowboarding”. [ 107 ] At 10:38 am, the silver Acura MDX was parked on the east side of Station Square Mall by a Starbucks.

McKinnon and Stephens were seen getting out of the vehicle; McKinnon went into Starbucks and Stephens went first into a TD Bank and then into Starbucks. At 10:42, the two men walked out of Starbucks into a first level covered parkade and a minute later the silver Acura MDX drove out of the parkade. [ 108 ] A short while later, at about 10:50 am, the silver Acura MDX was observed pulling up behind the white Sienna, which was parked on Antrim Avenue.

Sleigh and an unidentified male got out of the Acura, and Sleigh retrieved from its rear hatch a white grocery bag that appeared to contain an item with dimensions of 12”x12”. The two men appeared to disarm the Sienna and open the passenger’s sliding door. Sleigh placed the grocery bag inside the Sienna while the other male stood outside, after which Sleigh closed the door and the two got back inside the Acura. The vehicle drove away. A surveillance officer took a video of the men’s movements.

Stephens was later identified from the video as the unidentified male. [ 109 ] About an hour later (11:54 am), Margison and McKinnon were seen standing near the silver Acura MDX in the parking lot at North Fraser Pre-trial Centre in Port Coquitlam. Video taken by a surveillance officer shows Margison, McKinnon, Vu and an unidentified male standing in the parking lot; about five minutes later, Stephens exits the front doors of the Pre-trial Centre and all five men then get into the Acura MDX, which drives away. The unidentified male was later identified from the video as Sleigh.

Cell tower evidence shows Vu’s cell phone using a tower at 2755 Lougheed Highway in Port Coquitlam at this time. [ 110 ] Later that afternoon, RodimusPrime (McKinnon) sent a PGP message to BigCountry (Margison), “goof went snowboarding today”. [ 111 ] Between 12:07 and 12:39 pm, SpaceShuttle (Powers) and RodimusPrime (McKinnon) had a fairly lengthy PGP discussion. SpaceShuttle (Powers) talked about trying to “show u guys that I'm your guy today is just a bad day for me”. RodimusPrime (McKinnon) told him not to worry about it, “today is a wash” and that they were going to meet early the next day.

He advised SpaceShuttle (Powers) not to say anything to anyone over the phone or in the apartment. [ 112 ] That evening, Powers was heard in an intercepted communication with an unidentified male talking about “something planned for tomorrow”: … we’ve already been on for three days but this guy’s got a horseshoe up his ass, every time we go to do it, either his wife’s driving the car or.. it’s a joke, tomorrow it should go and if it works out I’m gonna be laughing, I’m gonna have more than I can even deal with, it’s gonna be a good payout. [ 113 ] Later that night, Mandingo (Vu) and RodimusPrime (McKinnon) exchanged PGP messages about meeting early the next day and RodimusPrime (McKinnon) told Mandingo (Vu) to “grab golf by 730”.

Saturday, November 19, 2011 [ 114 ] PGP messages among RodimusPrime (McKinnon), SpaceShuttle (Powers), Golfman (Stephens) and Mandingo (Vu) around 7:00 am on Saturday, November 19 indicate that SpaceShuttle (Powers) was arriving late. [ 115 ] At 7:41 am, Mandingo (Vu) sent a message to RodimusPrime (McKinnon) advising that he and “dj” were “eating at his place”. There is evidence that Stephens was known as “DJ”, the initials of his first two given names.

Beginning at 8:20 am there was an exchange between RodimusPrime (McKinnon) and Golfman (Stephens) about picking up “mission” and where to meet: RP to Golfman 8:20 a.m. – “Buzz me when you pick up mission. Drop him by the van with the keys. Bring the CPU. And if he has already left we will get him to meet us somewhere to drop off C.” Golfman to RP 8:23 a.m. – “Kk we re just waiting on him the wife already left she running around so dudes at home most likely watchin kids”.

RP to Golfman 8:24 a.m. – “Kk.” Golfman to RP 8:25 a.m. – “We just grabbed him” Golfman to RP 8:28 a.m. – “Yah where we meeting u guys the place we talked about yesterday?

I told him to sit and watch the place in back of ride so he not heaty and see if dude leaves” RP to Golfman 8:29 a.m. – “Yeah that sounds good. yeah the place we talked about.” Golfman to RP 8:30 a.m. – “Kk we ll msg u when we dropping him off” Golfman to RP 8:46 a.m. – “We dropped him off we re on way” [ 116 ] Shortly after this exchange, Powers was observed scraping the windows of the Sienna, which was parked on Antrim Avenue, and sitting inside the vehicle while it defrosted.

At 9:10 am, the white Sienna was seen parked on Sidley Street in a cul de sac east of Royal Oak Avenue not far from Eric Low’s residence. [ 117 ] Around this time, Golfman (Stephens) and RodimusPrime (McKinnon) had another PGP exchange:

Golfman to RP 8:58 a.m. – “U guys almost their? We don’t wanna sit and wait so we ll cruise around till u guys almost their” RP to Golfman 9:00 a.m. – “Gonna be like 15 min. Waiting outside C’s house cuz they don’t wanna knock on the door.” Golfman to RP 9:01 a.m. – “Kk” RP to Golfman 9:12 a.m. – “Be there in less then 5.” Golfman to RP 9:15 a.m. – “We re in position” RP to Golfman 9:16 a.m. – “Kk. Be there quick.” [ 118 ] At about 9:46 am, the green Toyota Tacoma was observed pulling into the Sidley Street cul de sac beside the white Sienna.

A person exited the rear of the Tacoma and walked to the passenger’s side of the Sienna. A minute later, both vehicles left in tandem. [ 119 ] The white Sienna took a circuitous route, stopping on Beresford Street at Royal Oak Avenue at 10:05 am, where the driver went into a corner store for a few minutes. A surveillance officer walked past the vehicle and observed Sleigh sitting in the passenger seat.

The Sienna was then seen headed toward Burnaby General Hospital with Powers at the wheel. [ 120 ] At 10:23 am, RodimusPrime (McKinnon) began a PGP exchange with SpaceShuttle (during this time, either Powers or Sleigh could have been using the SpaceShuttle account as they were together; I attribute most of these exchanges to Powers but in the context it matters little whether Powers or Sleigh was sending or receiving the messages): RP to Spaceshuttle 10:23 a.m. – “Buzz me when he starts moving.” Spaceshuttle to RP 10:24 a.m. – “Yo just msgin u he’s movin down Kingsway we on him” RP to Spaceshuttle 10:24 a.m. – “K bro.

Awesome.” Spaceshuttle to RP 10:25 a.m. – “he goin down willingdon probably to highway” [ 121 ] According to the tracking data, Tracker 209869 was near the Low residence on Sidley Street at 9:19 am, near Kingsway and Nelson at 10:21 am, and at Burnaby General Hospital at 10:27 am. [ 122 ] At 10:37 am, the white Sienna was parked near Burnaby General Hospital. At 10:40, Spaceshuttle (Powers) sent a PGP message to RodimusPrime (McKinnon): “yo the acura is at the hospital it’s in pay parkin we watchin from just outside”. [ 123 ] At 10:48 am, Low’s Acura was observed in the hospital parking lot.

An Asian woman got into the vehicle and drove away at 11:28 am. Tracker 209869 followed the route taken by Low’s Acura and by 11:39 it was back at Royal Oak and Sidley Street. [ 124 ] A few minutes after Low’s Acura left the Burnaby General Hospital, the white Sienna drove through the roundabout at the hospital. At 11:36 am, it stopped on Briarwood Crescent off Willingdon Avenue and Powers and Sleigh were seen getting out of the van and switching seats.

At 11:48 am, SpaceShuttle (Powers) answered a query from BigCountry (Margison) as to whether they could have “had him at the hospital” saying, “Na there was a guy u had to pay on the way out, probly cameras too. Acura is in the backyard, benz in front we around the corner hiding out”. At 12:10 pm, the white Sienna was at Watling and Royal Oak, just south of Sidley Street. [ 125 ] According to the tracking data, Tracker 209869 began to move again just after 12:00 pm.

It headed west along Imperial Street to an area near West 40 th Avenue and Cambie Street in Vancouver, arriving there at 12:27 pm. [ 126 ] At 12:08 pm, SpaceShuttle (Powers) reported to RodimusPrime (McKinnon) that “the benz is movin down Imperial we goin”, though he subsequently realized it was in fact Low’s Acura.

At 12:36 pm, SpaceShuttle (Powers) told RodimusPrime (McKinnon), “we followed him down 41 he’s at a house, must be in garage prob grabbing or droppin u think?” At 12:38 pm, SpaceShuttle (Powers) asked RodimusPrime (McKinnon) if he had the “LP of the benz”, to which RodimusPrime (McKinnon) answered, “843pbx”. That was the licence plate number of the loaner Mercedes GLK 350 that Mr. Low was using while the white Mercedes was at the dealership. [ 127 ] The white Sienna was observed between 12:30 and 12:44 pm headed towards 41 st Avenue and Cambie and doing a grid-like search of the area.

At 12:55, RodimusPrime (McKinnon) wanted to know what was going on and SpaceShuttle (Powers) replied at 12:58, “just waiting, the benz is still home the acuras gotta be hiding in a garage its all residential here”. At 12:59 pm, the white Sienna was observed stopping east of Cambie at 39 th Avenue and Mackie Street. At 1:04 pm, SpaceShuttle (Powers) told RodimusPrime (McKinnon) “the GL still home. Acura batt says 100% and its right around us”. [ 128 ] According to the tracking data, Tracker 209869 left the Cambie Street area at 2:55 and arrived back at Sidley Street 20 minutes later.

Just before 3:00 pm, Powers was seen driving the white Sienna in the area of 39 th and Cambie. At the same time, SpaceShuttle (Powers) told RodimusPrime (McKinnon) that “buddys on the move back to burnaby”. At 3:19, RodimusPrime (McKinnon) told SpaceShuttle (Powers) to “wrap it up same time tomorrow”. When SpaceShuttle (Powers) asked, “The glk heading down Kingsway not worth a follow?”, RodimusPrime (McKinnon) answered “Fuck it bro. Tomorrow”. [ 129 ] By 3:23 pm, the white Sienna was parked on Antrim Avenue. SpaceShuttle asked RodimusPrime (McKinnon) whether “Johnny” should keep the keys.

RodimusPrime (McKinnon) told him to “Just meet at the place we park the van”. It appears that Sleigh may have been using the SpaceShuttle PGP at this time, given the reference to “Johnny”. Sleigh had been seen with Powers in the white Sienna before and after it was at Burnaby Hospital earlier that day. [ 130 ] At 4:15 pm, Tracker 098965 was on Verdun Place in Richmond, the location of the Mercedes dealership. At about 4:35 pm, Eric Low returned the loaner Mercedes GLK and picked up his white Mercedes. At the same time, RodimusPrime (McKinnon) told Golfman

(Stephens) in a PGP message, “He picked up his ride. Goin to grab the tracker”. [ 131 ] At 4:45 pm, the Tacoma was seen pulling into the Mercedes dealership. It was followed five minutes later to the area of Sweden Way and Bridgeport Road. At 5:02 pm, Vu’s cell phone was using a cell tower near Bridgeport and River Road, an area west of Sweden Way. At 5:10 pm, the Tacoma was seen near Bennett Road and Turnill, an area further southwest. [ 132 ] At 6:15 pm, the Tacoma was in a parking lot at Coquitlam Centre Mall.

Margison and McKinnon were seen walking through the mall and outside along a path about ten minutes later. At about 7:00 pm, the Tacoma was seen parked on the roadway inside King Edward Village and Vu was seen using the ATM at the TD bank in the same location. At that time, Vu’s cell phone was using a cell tower located nearby at Knight and Dumfries. [ 133 ] Tracking data from Tracker 098965 is consistent with the surveillance observations of the Tacoma. The tracker was near Bridgeport and Sweden Way at 4:51 pm and in the area of Bennett Road and Turnill at 5:13 pm.

It left that area a few minutes later and arrived at Coquitlam Centre at 6:13 pm. The tracker then left Coquitlam at 6:17 and went to Knight and Kingsway, arriving at 7:03 pm. Sunday, November 20, 2011 [ 134 ] Between 2:30 and 6:00 am on Sunday, November 20, police executed a general warrant to search the white Sienna. The warrant authorized the police to move the vehicle, install a tracking device and an audio device, take photographs, and render any firearm in the vehicle inoperable.

The Sienna was moved from its location on Antrim Avenue to a secure location during this process. [ 135 ] A number of items were found in the Sienna, including a white zap strap, a ski mask and a black glove, a package of pillowcases and a black “Starter” brand backpack.

Inside the backpack, police found a Colt pistol in a black holster, 111 rounds of ammunition inside a white plastic bag that was inside a pillowcase, two magazines still in their packaging and a receipt from Reliable Guns dated November 17, 2011 and time stamped 3:18:18 pm, three pairs of gloves, a ripped shirt sleeve and a zap strap in the locked position. [ 136 ] Cst. Paul Suwek, formerly a firearms instructor with the Vancouver Police Department, was tasked with rendering the Colt pistol inoperable.

He attempted to do so by removing the firing pin and filing it down in order to prevent it from striking the cartridge when the trigger was engaged. [ 137 ] Once the police completed their tasks, everything was put back into the Sienna and it was towed back to its original location on Antrim Avenue. [ 138 ] Meanwhile, Tracker 098965 was on the move. It left the vicinity of 4028 Knight Street just after 1:00 am, was near Central Park in Burnaby at 1:08 and arrived at Sidley Street at 1:12 am. Cell tower evidence shows Vu’s cell phone using a tower near Central Park in Burnaby at 1:08 am.

At 1:19 am, Mandingo (Vu) sent a PGP message to RodimusPrime (McKinnon) that the “sl not there”, which was followed by messages stating “ill go at 6am 2morrow” and “I want to get this done”. Tracker 098965 moved from Sidley Street back to the vicinity of 4028 Knight Street, arriving there at 1:34 am. Cell tower evidence shows Vu’s cell phone using a tower near 6450 Inverness at 1:30 am, which is consistent with the location of the tracker at that time. [ 139 ] Later, Tracker 098965 moved from Sidley Street to the vicinity of 4028 Knight Street again, arriving there at 6:39 am.

Mandingo (Vu) then contacted RodimusPrime (McKinnon) and Golfman (Stephens): Mandingo to RP 6:44 a.m. – “hey bro I just got back from E place his sl not there an I went to his mom place to check to an its not there so I guess we can’t do it today” Mandingo to RP 6:45 a.m. – “I msg u so late cuz I left my zapper at home but I was at his place like at 615” … Mandingo to Golfman 6:48 a.m. – “hey bro I don’t think it going to happen today I went to his place at 1am last night to put back on the tracker an he wasn’t there an I almost went there at 615 an went to his mom lace to look for him .

We took the tracker off yesterday cuz he drop off the rental in richmon an got his sl back” [ 140 ] The white Sienna was seen parked on Antrim Avenue at 8:20 am. It was not seen anywhere else that day. At the same approximate time, the Tacoma and the silver Acura MDX were both parked in the vicinity of 4028 Knight Street. [ 141 ] Several times that morning, SpaceShuttle (Powers) contacted RodimusPrime (McKinnon) asking what was going on. At 10:33 am, RodimusPrime told him, “Don’t know yet. He wasn’t there last night. Gotta get the tracker on him”.

Shortly after 11:00 am, Powers left 7063 Hall Avenue and got into a taxi. He was then followed to an address on Kudo Drive in Mission. [ 142 ] At 2:05 pm, a white BMW M6 was observed parked in the public parking area beneath King Edward Village and 4028 Knight Street. Not long before, the vehicle had been seen driven by Shawn Roming with Margison as his passenger.

The Tacoma was parked on the east side of Knight Street just south of the access road into King Edward Village. [ 143 ] Between about 1:30 and 2:20 pm, SpaceShuttle (Powers) and BigCountry (Margison) were involved in a rather intense exchange, with BigCountry (Margison) admonishing SpaceShuttle (Powers) at 2:09: “Hey bro listen there has been a lot of fuking up lately. I don’t know why ur thinking bringing ur phone is okay. I don’t feel like doing 18 yrs cuz of som stupid move u make. Buddy is driving on the com and working the zap. Wat if u got pulled over cuz he was on the phone.

Wat if u could hav grabed him wile he came out of the hospital but u we’re sleeping. We are all broke and this is a million dollers. U hav to understand not many ppl get a chance to work with us. Ask around ppl would kill 2 roll with us. U make very bad decisions. I know u always hav an excuse and that makes it worse. I want 2 help u but I think we are going to hav 2 go with som1 else on this one cuz we

need 2 get it done and it just seems like u hav other stuff going on” [ 144 ] RodimusPrime (McKinnon) expressed similar sentiments in PGP messages to SpaceShuttle (Powers). RodimusPrime (McKinnon) said he was “coming to grab you in mission later” and at 2:29 pm stated: “We are all broke. I’ve been giving you money to eat. None of this matters. I’m grabbing you in a bit gonna grab those things. I will give you the van and the CPU tonight. If you get that done on your own and stop doing things that waste my time and risk my freedom. We can keep moving forward if not then you can go your own way.

So what’s it gonna be?” [ 145 ] Immediately after, the Tacoma went mobile. Roming was seen driving with McKinnon and Margison as passengers. Tracker 098965 shows movement consistent with surveillance observations of the Tacoma until about 3:20 pm. [ 146 ] The Tacoma was then seen in Richmond at several locations, ending up at the Lansdowne Mall at about 4:45 pm. Margison, McKinnon and Roming exited the vehicle and went into a sushi restaurant. They were captured on video leaving the restaurant and returning to the Tacoma at about 5:50 pm.

Roming was carrying an open laptop. [ 147 ] At 6:18 pm, RodimusPrime (McKinnon) was in another exchange with SpaceShuttle (Powers), exemplified by this message from RodimusPrime: “Its just frustrating. You just need to think things through a little more. We will pick you up in a bit. We are all struggling right now. But that’s the thing this isn’t peanuts. Honestly even if we have to keep doing what we have been doing for two weeks strait when you put 100k in your pocket it will be well worth it.

And when we get paid this time I’m taking 20% of your cut and putting it away in a safe place for if it gets to struggling again I will give it to you a bit at a time so you don’t have to worry about not having rent money or money to eat. I’m not gunna put other guys on this but you need to be reliable everyday till this pays off. I don’t enjoy waking up at 630 every morning either. But sometimes things happen easy and sometimes you have to work for it. And persistence is what’s going to get us paid.

So you need to eat sleep and live this chink till we get his pap”. [ 148 ] A little later, RodimusPrime (McKinnon) had this exchange with Mandingo (Vu): Mandingo to RP 7:49 p.m. - “That’s good what about E was he home earlier” RP to Mandingo 7:50 p.m. – “Didn’t go just gonna do it later. Will drop you the truck right after. Gonna go pick up mission first.” [ 149 ] For the rest of the evening, Margison and McKinnon, driven by Roming in the Tacoma, went from Richmond to Coquitlam and eventually to Mission.

Monday, November 21, 2011 [ 150 ] The Tacoma was observed in Mission just after midnight and back in Coquitlam by about 12:50 am on Monday, November 21. Again, tracking data for Tracker 098065 shows movements that correspond with those of the Tacoma. [ 151 ] At about 12:50 am, Margison, McKinnon and Powers were seen seated inside a Tim Horton’s in Coquitlam Mall. At 1:05 am, they left and stood outside, talking and smoking.

At 1:29 am, Roming and Kelsey McAuley (Margison’s girlfriend) got out of the Tacoma, met the other three, and then the five got into the truck and drove away. [ 152 ] Meanwhile, BigCountry (Margison) and Mandingo (Vu) exchanged PGP messages about switching vehicles: BigCountry to Mandingo 1:10 a.m. – “we are leaving coq now … u can put the keys 2 the 6 somewhere and we will leave the keys 2 the truck somewhere?” … BigCountry to Mandingo 1:21 a.m. – “Did u leave the keys in the car? Leave the keys in the tail pipe or on top of the tire.” Mandingo to BigCountry 1:31 a.m. – “I’m goin to put the key in front.

Of the left driver tiers can you park my truck in front of ur car that’s the only place u can park it over night”. Mandingo to BigCountry 1:34 a.m. – “Msg if what time we meeting up if we are just put my keys in the truck somewhere an let me no where it is u have a good night bro”. [ 153 ] Mandingo (Vu) also exchanged similar messages with RodimusPrime (McKinnon). At 1:40 am, Mandingo told RodimusPrime to “ just leave keys under the seat park where the 6 is cuz u can only park there overnight”. [ 154 ] At 1:59 am, Tracker 098965 was at Hall Avenue, at 2:03 it was by Mr.

Low’s residence on Sidley Street and at 2:07 it was on Kingsway west of Royal Oak Avenue. At 2:08 am, Margison, McKinnon and McAuley were observed in the Tacoma in the same area of Kingsway and Royal Oak. [ 155 ] At 2:10 am, BigCountry (Margison) sent a PGP message to Mandingo (Vu) telling him that they could hear “the helicopter” and were “gunna safe and not put the Tracker on so can u get up early and slap it on bro?” Mandingo (Vu) replied, “K I guess so”. At 2:13 am, the Tacoma was westbound on Kingsway at Knight. Tracker 098965 was in the vicinity of 4028 Knight Street at 2:17 am.

At 2:26, BigCountry (Margison) sent a message to Mandingo (Vu) that “the keys r wraped in the black gloves under the drivers seat”. [ 156 ] Both RodimusPrime (McKinnon) and BigCountry (Margison) sent further messages to caution Mandingo (Vu) about the morning:

RP to Mandingo 3:03 a.m. – “Hey bro. Take serious precautions tomorrow morning when you are driving. Make 100% sure you aren’t being followed Gnight. See you in the morning bro.” BigCountry to Mandingo 3:18 a.m. – “Bro make sure u loose heat 2morow if we have any. Rip around then go someplace quiet and listen for the helicopter. Night bro.” [ 157 ] At 5:59 am, Tracker 098965 began moving in the vicinity of 4028 Knight Street and at 6:37 it moved south on Knight, east on 49 th Avenue and stopped at 6:51 am at an area near Mr.

Low’s residence on Sidley Street. [ 158 ] At 8:07 am, BigCountry (Margison) asked Mandingo (Vu) if he “got that tracker on him this morning”. At 8:09 am, Mandingo (Vu) replied, “Ya tracker is on him”. [ 159 ] After this, there was a flurry of PGP messages between RodimusPrime (McKinnon), SpaceShuttle (Powers), Mandingo (Vu) and Golfman (Stephens) about making arrangements to meet. Mandingo (Vu) was tasked with picking up SpaceShuttle (Powers), referred to in some of the messages as “mission”.

At 10:04 am, Mandingo (Vu) told RodimusPrime (McKinnon) that he was with “him”, likely meaning Powers. [ 160 ] There was then this exchange between RodimusPrime (McKinnon) and Mandingo (Vu): RP to Mandingo 10:44 a.m. – “Have you looked at the cpu?” Mandingo to RP 10:44 a.m. – “I don’t have the cpu u have it right” RP to Mandingo 10:46 a.m. – “Sorry. Its behind the back seat” Mandingo to RP 10:47 a.m. – “In my ride ?” RP to Mandingo 10:48 a.m. – “The truck.” Mandingo to RP 10:48 a.m. – “Ok I got it”. [ 161 ] At 10:51 am, RodimusPrime (McKinnon) told Mandingo (Vu), “Kid is drunk. No go today.

Coming to see you now”, and at 10:54 he told Golfman, “C hasn’t slept. Still drunk. No go.” [ 162 ] Later that afternoon, SpaceShuttle (Powers), RodimusPrime (McKinnon) and BigCountry (Margison) had an exchange of PGP messages after SpaceShuttle (Powers) wanted to know if he could leave that night. RodimusPrime (McKinnon) told him to “Just stay out here we are gonna get together early” and later asked, “Should I just get someone else or what?” At 5:00 pm, BigCountry (Margison) sent this message: “Listen bro do u remember the talk we had last night. I’m tired of babysitting u kids. ITS A MILLION DOLLERS!!!

Like do I have 2 fukin scream it in ur face. Me and bro hav other ways of paying our bills u do not. This is all u hav and u wanna fuk around out there 2 fuk som goof! If u we’re that worried about ur fukin kid u would b fighting tooth and nail for this $$ so u can take ur son from that junkie rat and take care of ur son like a man. I see how much u love him but I don’t know what its wrong with ur brain. If I was in ur shoes and som1 told me 2 sit in a room for a month and wait for a call and they will give me $100,000 I would jump on it. Its a fuk around keeping u in the lower mainland.

If u go out there or do anything but go 2 bed early u r off the team. I mean that.” Tuesday, November 22, 2011 Early morning [ 163 ] PGP messages between RodimusPrime (McKinnon) and Mandingo (Vu) the morning of Tuesday, November 22 indicate that Mandingo was with “dj” or “golf”. Mandingo (Vu) offered to pick up SpaceShuttle (Powers), and after some back and forth, RodimusPrime agreed. [ 164 ] At about 8:50 am, Powers was seen leaving 7063 Hall Avenue on foot, heading westward and then south on Griffiths Avenue (two blocks west of Hall).

At 8:52, the Tacoma, driven by Vu with Stephens in the passenger seat, was seen headed northbound on Griffiths. At 9:02, Mandingo (Vu) told RodimusPrime (McKinnon) that he “Just drop Johnny”. At 9:07, Golfman (Stephens) sent a message to RodimusPrime (McKinnon), “we re coming to meet u now”. At the same time, Powers arrived on foot at Antrim Avenue where the white Sienna was parked. He got into the driver’s side and drove away. The vehicle was seen ten minutes later parked on Sidley Street just east of Royal Oak with Powers still in the driver’s seat.

By 9:26 the white Sienna was back parked on Antrim. [ 165 ] At about 9:36 am, the Tacoma arrived on Antrim Avenue and parked beside the white Sienna. Sleigh was seen getting out of the Tacoma and into the passenger seat of the Sienna. Margison was also seen getting out of the Tacoma, walking to the driver’s side of the Sienna, and having a conversation with the driver. Margison returned to the Tacoma and both vehicles drove away in tandem. [ 166 ] At 9:43 am, surveillance officers saw the Tacoma parked on Kingsway just west of Hall Avenue. Vu was standing outside the vehicle near the driver’s door.

Margison, McKinnon and Stephens got out of the Tacoma and crossed Kingsway with Vu. At 9:49, Margison was standing in front of Starbucks and Vu and Stephens crossed Kingsway back to the south side (where the Tacoma was parked). At 9:54, Golfman (Stephens) sent a PGP message to RodimusPrime (McKinnon), “Hey sl is on the move”. At 10:16, Vu, Margison, McKinnon and Stephens were seen crossing Kingsway back to the south side. They all got into the Tacoma and drove away. This latter observation was captured on video and all four individuals can be clearly identified in it. To Brentwood Mall

[ 167 ] During this time, another surveillance team was watching the white Sienna. It was observed on Victory Street (near Antrim) at 9:53 am and parked on Macpherson Avenue (a block east of Antrim) south of Beresford Street at 9:56 am. At 10:00, Low’s Acura was seen parked near McPherson Avenue and two Asian males were loading ski equipment into it. Low’s Acura drove north on Macpherson and the white Sienna followed behind it.

At 10:05, SpaceShuttle (Powers) sent a PGP message to RodimusPrime (McKinnon), “Kk he jus left he got 1 passenger”. [ 168 ] Eric Low testified that on November 22, 2011, he and a friend went snowboarding at Cypress Mountain in his Acura MDX. He said that he left at approximately 9:00 am and picked up his friend on Macpherson Street south of Beresford. [ 169 ] At 10:24 am, about 20 minutes after it left Macpherson Avenue, surveillance officers saw the white Sienna at Brentwood Mall (at Willingdon and Lougheed Highway) circling the parking lot.

At 10:39 am, Low’s Acura was parked in the lot and a minute later the Sienna parked beside it. A minu

[…]