Court Information
Case Name: R. v. Bau A. Diu and Van Vi Huynh
Court: Ontario Court of Justice, Toronto, Ontario
Judge: P. Kowarsky J.P.
Heard: February 25, 2013
Judgment: February 27, 2013
Counsel
Crown Counsel: Ms. E. Jackson
Defence Counsel:
- Ms. P. Locke for Mr. Huynh
- Mr. G. Orr for Mr. Diu
Judicial Interim Release Hearing
Reasons for Judgment
A. Introduction
[1] At the conclusion of a full-day Bail Hearing on Monday, February 25th 2013, I reserved my decision until today, Wednesday, February 27th 2013. This is my judgment.
B. The Charges
[2] The two accused are charged together with a third male, Anson Kam Ming Au, with numerous crimes in two Informations. One Information charges the two accused who are before me, with possession of Opium Poppy (including Heroin) contrary to section 4(1) of the Controlled Drugs and Substances Act. The second Information contains the Criminal Code charges against them as follows:
Mr. Diu:
- Robbery while armed with a firearm
- Forcible Confinement
- Possession of a prohibited weapon times 2
- Possession of property obtained by crime
Mr. Huynh:
- Robbery while armed with a firearm
- Forcible confinement
- Possession of a prohibited weapon times 2
- Failing to comply with Recognizance
- Possession of property obtained by crime
C. The Onus of Persuasion
[3] In relation to Mr. Diu, the onus is reversed pursuant to the provisions of section 515(6)(viii) of the Criminal Code in that the accused is subject to two lifetime weapons prohibition orders, and is now charged with offences which are alleged to involve a firearm.
[4] In relation to Mr. Huynh, the onus is reversed in that he is currently on bail on charges of drug trafficking and impaired driving.
[5] Accordingly, in order to succeed in their applications for judicial interim release, each accused is required to satisfy the court, on a balance of probabilities, that his pre-trial detention is not necessary under the primary, secondary and tertiary grounds as set out in section 515(10) (a), (b) and (c) of the Criminal Code.
[6] The Crown's concerns are on the secondary and tertiary grounds with respect to both of the accused.
D. The Case for the Crown
[7] Detective Robert Lemaitre of the Toronto Police Hold Up Squad testified for the prosecution. His evidence is encapsulated as follows:
He is the lead investigator in this case.
At about 3:39 in the afternoon of February 5th 2013, the police received a radio call to investigate a shooting in a commercial building at a Hydroponic Equipment Store called "Garden" located at 729 Petrolia Road in Toronto.
He was one of the officers who was dispatched, and arrived at the crime scene at about 4:12 pm on the same day.
Upon arrival, the police found two males of Asian origin, both bleeding from their heads and faces, with numerous obvious injuries. Neither of the victims appeared to have been shot, but rather pistol whipped and beaten.
One of the accompanying officers speaks Vietnamese thereby enabling the police to question the two victims. Ngoc Tran and Tuan Tran informed the police that at about 1:30 or 2 p.m. that day, five males, apparently of Asian origin, entered the business premises. Both he and Tuan Tran were whipped, beaten, bound with duct tape and plastic zip ties and forcibly confined by two of the five intruders.
Ngoc had a large gash on the rear of his head. Both sustained facial injuries, bleeding and bruising with swollen lips and eyes.
There were two segments to the robbery:
First Segment:
Five assailants came in, whipped, beat and tied up Ngoc Tran and his wife Hoa Phi who were working there at the time. The assailants then placed plastic bags over the heads of these two victims, ransacked the business and demanded cash, bankcards and identification documents. Before leaving, the perpetrators warned the victims that if they reported this attack to the police, they and their families would be killed.
Mr. Ngoc Tran was drifting in and out of consciousness at the time. After some 20 to 30 minutes, the assailants left, and the victims were able to free themselves. Ms. Phi rushed to her home to see to her children, while Mr. Ngoc Tran called his friend, Van Tran, who arrived at the scene about 15 minutes later.
Second Segment:
As Van Tran was entering the premises, two Asian males were behind him. They beat, whipped and tied both Ngoc and Van up, and demanded their bankcards and PIN numbers. The two assailants began to torture the two victims using a silver pistol, a silver knife, pliers and various other tools. Ngoc Tran's fingers and nails were squeezed and pulled with pliers, and Van Tran had a gun put into his mouth.
The victims reported that a chemical, some form of commercial hydrogen peroxide, was poured onto their legs, causing burning sensations and pain.
This second segment of the robbery took about 10 or 15 minutes after which the assailants left, and the victims were able to free themselves. Neighbours called 911.
The victims had given the two assailants the PIN numbers to their bankcards.
Shortly after the arrival of the police at the crime scene, the two male victims were taken to the hospital for treatment. Ngoc Tran required stitches for his head wound.
After leaving the crime scene the police drove to the area of Ngoc Tran and Hoa Phi's home, about 10 minutes drive from the crime scene.
Plainclothes police officers observed a stationary motor vehicle nearby with three male occupants. When the squad car was driven near the stationary vehicle, it began to move.
The uniformed officers stopped the vehicle and located three males of Asian origin therein. Mr. Diu was in the driver's seat. Mr. Huynh was in the front passenger's seat, and Mr. Anson Au was sitting in the back.
The three men provided their respective identifications to the police, who located the following items within the vehicle:
A small amount of heroine on the driver's seat between Mr. Diu's legs, and more heroine elsewhere in the vehicle, a walkie talkie, four cell phones (two of which were in Mr. Huynh's possession), a silver "butterfly" knife, pepper spray, a quantity of cash, and a DVD player case in which they located Ms. Phi's Louis Vitton wallet, and US dollars folded in a pattern which had apparently been given to Ms. Phi as a gift.
The three men were arrested and transported to 31 Division where all their clothing was also seized. Mr. Huynh had $1790 in cash and Mr. Diu had $212.55 in cash.
All three victims provided DVD statements to the police with the assistance of the Vietnamese interpreter. Two of them were definitely KGB statements. However, the detective is not sure whether the third statement given by Mr. Van Tran on a date subsequent to the 5th of February, 2013, was also a KGB statement as he was not present when that statement was given.
Forensic evidence taken from the crime scene and the motor vehicle together with the clothing worn by the three accused at the time of their arrest, are still being analyzed.
A photo lineup with respect to the identification of the accused by the victims is presently being prepared.
Production orders were granted with respect to the seized cell phones, and the police are awaiting the results.
The victims described their attackers as five male Asians, two of whom were wearing hoodies. One was wearing black, the other was wearing grey.
When Mr. Diu was arrested, he was wearing a beige jacket, blue jeans and a white tank top.
The descriptions of the suspects as provided by the victims, were generic in nature, and did not provide detailed descriptions of the perpetrators.
Mr. Ngoc Tran who was in and out of consciousness during the first segment of the attack, and was attacked again during the second segment, believes that the same two males who attacked them initially, returned to attack them again. Both times one was wearing black with a hoodie, and the other was wearing grey with a hoodie.
Mr. Diu and Mr. Huynh were arrested at about 4:12 p.m. on February 5, 2013. On the same day, at approximately 4:30 p.m. the two males were videotaped attempting to withdraw cash from ATM machines in Markham using the victims' bankcards.
The videos are clearly visible and reflect two Asian males, one wearing black with a hoodie and one wearing grey with a hoodie.
These two males have not been apprehended yet because the police do not know who they are, although Detective Lemaitre testified that in his view, they could easily be identified by people who know them.
The theory of the police is that these two males caught on the ATM videos are the ones who perpetrated the attacks on the three victims earlier that afternoon, and that the three accused arrested from the motor vehicle, were part of the five who together allegedly perpetrated the crimes.
E. The Case for Release
[8] Mr. Orr called Stephen Tan who testified that he is one of the founders and owners of a recovery science corporation that monitors alcoholics who are involved in counseling. The business of his corporation includes the monitoring, detection and reporting of people who are ordered by the courts to wear electronic monitoring devices on their ankles as a condition of their release on bail.
[9] Mr. Tan testified in detail regarding the system that he uses, its workings and significant effectiveness. He provided the court with pertinent explanations, supporting documentation as well as a list of cases in which electronic monitoring orders were made, and his equipment was utilized.
[10] Mr. Tan's testimony was extremely informative, and he presented compelling reason for ordering both of the accused before me to wear such devices while on bail. The court is in a position to establish zones that are accessible to the accused and those which are not. He suggested that telephone numbers of police officers could be provided to his company so that the police can receive notification of a breach within 1 to 10 minutes.
[11] He told the court that the only way to remove such an ankle bracelet is to cut the strap, which would enable his company to detect that within one minute.
[12] In essence, the electronic monitoring device is a computerized instrument enabling the monitoring company to immediately detect non-compliance, and to report it to the police forthwith. However, it is the responsibility of the police to put into place some form of protocol for responding and reacting to such reports.
F. Proposed Surety for Mr. Diu
[13] Ms. Quy-Anh Luong-Diu testified that she is 36 years old, and has been married to Mr. Diu since 1999. They have an 8-year-old daughter, and live together in a house in Markham, which she owns with her brother, who has only 1% of the ownership therein.
[14] She bought the house about two years ago, and it is currently valued at about $600,000.00. Her equity is about $190,000.00, and she is prepared to pledge most of it to secure the release of her husband.
[15] She has been a surety for her husband in the past, and she reported him to the police when he breached.
[16] She is employed full-time at a large financial investment corporation in Toronto, and earns about $45,000.00 a year. She is virtually the sole breadwinner of the family.
[17] Her 42-year-old husband Bau Diu was born in Vietnam and came to Canada when he was some two years of age. He was adopted here and lived in Vancouver. At the age of 18, he moved to Toronto on his own.
[18] In due course Mr. Diu became a permanent resident of Canada. However, his wife testified that as a result of his extensive criminal activity, the Immigration Department ordered his deportation. The Immigration Authorities revoked his permanent residency status, and have been "trying to deport him" since 2004. However, he does not have a passport from any country, making his deportation a challenge for the Canadian Authorities.
[19] Mr. Diu is presently on release pursuant to an Immigration Bail Order. His wife is his surety. She posted $15,000.00 bail of which $10,000.00 was paid in cash.
[20] She is prepared to post some $100,000.00 to have her husband released on bail with respect to the current charges, and she does not believe that "he would betray me and my daughter." He would be under strict house arrest and would wear an ankle bracelet. She is not afraid of Mr. Diu who has never been violent to her or their daughter.
[21] Under cross-examination Ms. Quy-Anh Luong-Diu testified that she had met her husband while he was in prison facing a murder charge, and she felt sorry for him.
[22] Mr. Diu breached his bail once when she was his surety and three times while others were. He is involved in a program to address his drug addiction. He once worked in a restaurant for about 6 months, but for the last 14 years he has been on Employment Insurance benefits.
[23] His wife told the court that Mr. Diu was convicted of possession of crack cocaine and "drinking and driving" in 2011, and that he is subject to a lifetime driving prohibition.
[24] It is noteworthy that despite her knowledge of such facts, she had left her car keys hanging in plain sight at home when she went to work one day in 2011, believing that his friend who was visiting them at the time would drive her car if the two of them wanted to go out. It was on that occasion that Mr. Diu consumed liquor and drove her vehicle while at the same time, being in possession of crack cocaine.
[25] She told the court that he has spent about 11 years in jail since 1991.
[26] The plan is that he will wear an electronic monitoring device; his wife will be his surety while he is under house arrest with the only exceptions being when attending court and for medical emergencies.
G. Proposed Surety for Mr. Huynh
[27] Hung-Viet Ta testified that he lives alone in Toronto, and is on O.D.S.P. He has savings of about $2000.00, which he is prepared to pledge to secure the release of his friend, Mr. Huynh, and will move into Mr. Huynh's home. The two of them go out together from time to time and "we drink together."
[28] Mr. Ta himself has a Criminal Record albeit dated. It commences in 1983 and includes charges of assault, assault with a weapon and impaired driving. The assault charges were withdrawn when Mr. Ta signed a Peace Bond. He was also charged with driving while under suspension and driving without insurance. It is unclear whether he was actually convicted of both of these offences or only one. Nonetheless, he informed the court that he was fined $2500.00, which he has been slowly paying in installments from time to time for the last 7 or 8 years.
[29] The plan is that Mr. Huynh would be under house arrest under Mr. Ta's supervision. The exceptions being when going to counsel's office, court and for medical emergencies. Mr. Huynh would also wear an ankle bracelet.
H. The Rights of the Accused
[30] The function of the bail court is not to punish the accused for the crimes which he is alleged to have committed but rather to determine whether pre-trial custody is necessary having regard to the provisions of section 515(10) (a)(b) and (c) of the Criminal Code.
[31] I take into account the accuseds' right under the Canadian Charter of Rights and Freedoms to the presumption of innocence, their right to be granted reasonable bail as well as their right not to be deprived of their liberty and security except in accordance with the principles of fundamental justice.
[32] The jurisprudence with respect to these rights clearly clarifies that:
- Imprisonment prior to trial is a last resort
- Pre-trial detention is extra-ordinary in our system of criminal justice
- There are no categories of offences for which bail is not a possibility
- Bail will be denied only in a narrow set of circumstances
I. Analysis
[33] The Crown submitted that she has no concerns on the primary ground in relation to both accused. I agree. Her concerns and mine are on the secondary and tertiary grounds.
[34] Section 515(10)(b) of the Criminal Code provides that an accused may be ordered to remain in pre-trial custody:
"Where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 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."
[35] In R. v. Morales, [1992] 3 S.C.R. 711, Chief Justice Lamer, as he then was, speaking for the Supreme Court of Canada, expressed the difficulty of determining "substantial likelihood" within the meaning of section 515(10) (b) of the Criminal Code as follows:
"While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact prediction of future dangerousness is not constitutionally mandated."
[36] It is trite to say that antecedent criminal behaviour is a reliable precursor of future criminal behaviour even though such a test is not an exact science. In this regard, the Criminal Record of each of the two accused requires careful analysis and consideration when referencing all the circumstances pertaining to each of them.
J. Mr. Diu's History of Involvement with Criminal Justice System
[37] His Criminal Record was admitted and tendered into evidence as an Exhibit. It commences in 1988 with convictions for possession of an unregistered restricted weapon, carrying a concealed weapon and careless use of a firearm. His record also includes four convictions for failing to comply with recognizance, impaired driving times 2 and "driving over 80." Furthermore, Mr. Diu has additional convictions for possession of an unregistered restricted weapon, carrying a concealed weapon times 2, careless use of a firearm, assault, assault causing bodily harm, manslaughter and attempted murder.
[38] Mr. Diu is also subject to three Driving Prohibition Orders: One for 5 years; One for 10 years and One for life. The Crown did not have the written record of relatively recent convictions in Winsor for Impaired Driving and possession of crack cocaine, but Mr. Diu's wife testified to that.
[39] Ms. Jackson also provided Defence Counsel and me with a copy of a Superior Court Indictment from September 10 2009. This document indicates that on September 10, 2009 Mr. Diu pleaded guilty, and was convicted of: Robbery without a Firearm, Possession of a loaded prohibited firearm and Possession of an unlicensed firearm. The disposition included time served of 22 months times two, Probation for three years, a DNA sample and a lifetime weapons prohibition.
K. Mr. Huynh's History of Involvement with the Criminal Justice System
[40] His Criminal Record was admitted and tendered into evidence as an Exhibit. It commences in 1990, and includes convictions for property offences both under and over $5000.00. In 2003 he was convicted of two counts of kidnapping for which he was sentenced to 6 years in custody on each count and a mandatory weapons prohibition.
[41] Also in 2003, he was convicted of extortion and forcible confinement for which he was sentenced to two years in jail on each count although all of these jail terms were to run concurrently.
[42] A conviction for possession of a Schedule I substance under the Controlled Drugs and Substances Act followed later in 2003, and then a conviction for dangerous driving in 2004. Clearly, Mr. Huynh has spent a significant amount of time behind bars.
[43] In light of his record, his connection to the current allegations become extremely worrisome when viewed in relation to their similarity with his convictions for extortion and forcible confinement.
[44] Furthermore, the presence of heroin in the vehicle when he was apprehended is of grave concern when seen against the backdrop of his current release on a charge of trafficking in heroin.
L. The Apparent Strength of the Crown's Case
[45] In order to render my decision, I am mandated to consider all the circumstances including the apparent strength of the Crown's case against each accused with respect to the charges in the case at bar. Both Defence Counsel proffered, particularly in relation to the issue of identification, that the Crown's case against their clients was very weak. As always, there are triable issues that will have to be dealt with by the trial judge in due course.
[46] However, in my view, what does indeed connect the two accused to all the charges presently before this court is that within less than one hour after the robberies occurred, items which had been in the possession of the victims at the crime scene some 40 minutes prior to the arrest of Mr. Diu and Mr. Huynh, were found in the car. These items include the DVD player holder with Ms. Phi's wallet inside together with her U.S. dollars folded in a specific manner.
[47] Crown Counsel, Ms. Jackson, referred the court to the "Doctrine of Recent Possession" which supports her theory that there were five perpetrators of these crimes, of whom three were arrested in the motor vehicle, and the other two went to endeavour to use the stolen bank cards to withdraw cash from the victims' accounts at ATM machines in Markham.
[48] In R. v. Kowlyk, [1988] 2 S.C.R. 59, the Supreme Court of Canada dealt with the Doctrine of Recent Possession. Dickson C.J., speaking for the majority, explained the doctrine as follows:
"Upon proof of the unexplained possession of recently stolen property, the trier of fact may—but not must—draw an inference of guilt of theft or of offences incidental thereto. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offence. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn."
[49] Although I am not the trier of fact in these proceedings, because some of the stolen items from the crime scene were found in the motor vehicle, I draw the inference that the two accused before me were in all likelihood directly involved in the more serious crimes with which they are now charged. In my view, such evidence and inference significantly amplifies the apparent strength of the Crown's case against Mr. Diu and Mr. Huynh.
M. The Adequacy of the Release Plans
[50] I reject both plans of release as being insufficient to satisfy me on both the secondary and tertiary grounds. Even the use of the ankle bracelets does not persuade me that the release plans would be sufficient to attenuate my concerns.
[51] Mr. Diu has continued to commit crimes and to breach court orders for many years, and has not been adequately supervised by his wife even though she was and is his surety. She too cannot be relied upon, I believe, for reasons which include her admission that she left the keys to her car in plain sight knowing that her husband was on a lifetime driving prohibition order.
[52] Furthermore, the evidence of the Officer in Charge is that Mr. Diu was driving his wife's car when he was apprehended by the police after the robberies on February 5th 2013. So, can she be trusted to ensure that her husband will comply with his bail conditions and his other court orders? I don't think so.
[53] Mr. Huynh's proposed surety appears to be his "drinking buddy," who has limited, if any, funds, and he is on O.D.S.P. Mr. Ta also has a record of convictions for crimes and driving offences, albeit somewhat dated. I am not satisfied that Mr. Ta would be an effective surety even in conjunction with an electronic monitoring device on Mr. Huynh's ankle.
[54] In U.S.A. v. Khadr, [2008] O.J. No. 3203, Superior Court Judge G. Trotter said the following at paragraph 63:
"Some judges have considered the availability of electronic monitoring to be a helpful adjunct to supervision by sureties while on release. However, as Lang J.A. observed in United States of America v. Le, [2004] O.J. No. 3105 (Ont. C.A.) at paragraph 8, 'the sureties retain primary responsibility' for the person released; electronic monitoring is 'merely a means of taking advantage of modern technology to implement maximum safeguards.'"
And at paragraph 64:
"...assuming the electronic monitoring system that is proposed in this case functions flawlessly, it is not an infallible safeguard against defalcation on the part of the person monitored."
[55] "For a surety to be sufficiently reliable one must be willing to make a very significant commitment to alter one's personal life on behalf of another person. In order to accept the surety, the court needs the reassurance that there is some logical reason or connection for his taking on what is clearly a very real burden for a considerable period of time." R. v. Cornel, [2011] O.J. No. 6262 (Ont. S.C.).
[56] With respect to Mr. Diu's wife, she is the sole breadwinner, works full-time, cares for her young daughter, and is not in a position to make any significant change to her personal life as would be expected of her.
[57] With respect to Mr. Huynh, although Mr. Ta is willing to move into Mr. Huynh's home, their relationship is shallow and lacking in reliability and substance. Coupled with Mr. Ta's impecuniosity, he would not be an appropriate surety.
[58] For these reasons, I am not persuaded that the plans of release are sufficient to reduce my concerns on the secondary ground to an acceptable level. In other words, I am of the view that, in all the circumstances, there is a substantial likelihood that if released on bail, both Mr. Diu and Mr. Huynh would continue with their criminal activities as they have done in the past.
N. The Tertiary Ground
[59] Having come to such a conclusion, I need not address the tertiary ground. However, when taking account of all the circumstances relative to each accused with due regard to each of the four factors which must be considered pursuant to section 515(10)(c) of the Criminal Code, I am of the view that neither of the accused has met his onus on the tertiary ground either.
[60] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, the Supreme Court of Canada set out the test for determining whether a bail release would bring the administration of justice into disrepute as follows:
"Whether a reasonable person, properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case would be satisfied that the denial of bail is necessary to maintain confidence in the administration of justice. This hypothetical, well informed, reasonable person is only asked this question if the accused is no danger to the public and is not a flight risk."
[61] In light of the test in Hall, I am persuaded that if I were to release either Mr. Diu or Mr. Huynh on bail, such a decision would bring the administration of justice into disrepute, having regard to their proven criminal activity.
[62] In R. v. B.S., 2007 ONCA 560, [2007] O.J. No. 3046, Chief Justice Winkler of the Ontario Court of Appeal expressed the current relevance of the tertiary ground as follows at paragraph 10:
"The tertiary ground continues to apply to all persons seeking judicial interim release, whether charged with relatively minor, non violent offences or whether charged with murder. In a practical sense, it will not often be a factor in most cases, but as the nature of the offence and surrounding circumstances become more serious, the consideration of the tertiary ground will become more relevant."
O. Disposition
[63] Even though I am persuaded that neither of the accused has met his onus on either the secondary or the tertiary ground, but for their significant criminal records, they may have been candidates for judicial interim release.
[64] Accordingly, I am going to order that Mr. Diu and Mr. Huynh be detained primarily as a result of their respective previous convictions, and I will endorse the Informations pursuant to section 515(9.1) of the Criminal Code.
[65] I thank Crown Counsel, Ms. Jackson and Defence Counsel Ms. Locke and Mr. Orr for the excellent manner in which they presented their respective cases to the court.
P. Kowarsky J.P.
