Court Information

Information No: 12-2045, 13-6939

Date: September 10, 2014

Location: London, Ontario

Court: Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

-and-

Thu Tran, Tuan Vu, Cong Nguyen, Derek Pedro

Before the Court

Justice: Jonathon C. George

Reasons for Decision (at Preliminary Hearing)

Counsel

• K. Johnson – Federal Prosecutor
• R. Marzel – for Cong Nguyen
• P. Lewin – for Derek Pedro
• P. Millar – for Thu Tran (and as agent for counsel to Tuan Vu)

Decision

J.C. GEORGE J.:

Charges Against the Accused

[1] Thu Tran and Tuan Vu are charged with unlawfully conspiring together, and with Duc Bui, Thang Vu and Kim Nguyen, to commit the offence of marijuana production, contrary to section 465(1) of the Criminal Code of Canada. This offence is alleged to have occurred between February 1, 2011 and March 20, 2012. This is captured in count one on the Information.

[2] Count two charges that Cong Nguyen unlawfully conspired, with Duc Bui and Thang Vu, to commit the offence of marijuana production, contrary to section 465(1). This offence is alleged to have been committed in both London and Chatham and is to have occurred between March 30 and June 20, 2012.

[3] Count three charges that Cong Nguyen and Derek Pedro conspired with each other, and with Duc Bui and Thang Vu, to commit the offence of marijuana trafficking, contrary to section 465(1). This offence is to have occurred between May 15 and May 24, 2012.

[4] Count four charges that Cong Nguyen and Derek Pedro trafficked in cannabis marijuana, contrary to section 5(1) of the Controlled Drugs and Substances Act (CDSA). This is to have occurred on or about May 17, 2012.

[5] Count five alleges that on May 24, 2012 Cong Nguyen and Derek Pedro trafficked in cannabis marijuana, contrary to section 5(1) of the CDSA.

[6] The last count alleges that Cong Nguyen and Derek Pedro, on or about May 10, 2012, trafficked in cannabis marijuana, contrary to section 5(1).

Dispositions of Other Accused

[7] Duc Bui and Thang Vu have resolved their matters. They each pleaded guilty to some offences and have been sentenced. The charges against Kim Nguyen have been withdrawn at the request of the Crown. The Crown now invites me to discharge Tuan Vu, which I will do. The only evidence respecting Tuan Vu was a description of the role he played in introducing an undercover operator to Duc Bui. This, alone, is clearly insufficient for a committal. Tuan Vu is discharged.

Election and Preliminary Hearing

[8] All accused still before the court have elected to have a trial in the Superior Court before a judge and a jury. A preliminary hearing was requested, which is now complete. Committal is contested on some counts, with the parties having set out their respective positions through written submissions.

Evidence Heard

[9] Evidence was heard over the course of several days. I first heard from RCMP Corporal Kevin Woodruff, who took us through the documents filed by the Crown pursuant to section 540 of the Criminal Code. Corporal Woodruff is the lead investigator having been involved in this matter since 2010. We learned through Corporal Woodruff that the initial target and focus of the investigation was London real estate agent Thu Tran. She is of Vietnamese descent.

[10] He spoke of the origins of the investigation, indicating that it stemmed from a member of the Sutton Group Realty Corporation, who had advised police of a number of marijuana grow operations appearing in homes sold with Ms. Tran's assistance. The early stages of this investigation did not yield any evidence to suggest Ms. Tran had specific knowledge of any such grow operations.

[11] This is, however, what led to an undercover operator introducing himself to Thu Tran, posing as a Vietnamese person interested in purchasing a home suitable for setting up a marijuana grow operation. The purpose was to test Ms. Tran's knowledge and conduct.

[12] Two undercover operators interacted with Ms. Tran throughout the investigation. First, it was RCMP Corporal Manh Nguyen, and then Corporal Islam Issa (sp?). Officer Woodruff and both operators testified and were cross-examined. Many of those involved in the surveillance undertaken in the course of the investigation testified, and I also heard from Detective Constable Barry Smith, who was permitted to give opinion evidence on grow operations and the electrical components typically associated with them.

Legal Framework for Preliminary Hearings

[13] There are general principles which guide me when assessing the evidence at a preliminary hearing. In terms of statutory provisions, section 548(1) of the Criminal Code provides that:

548(1). When all the evidence has been taken by the justice, he shall, a) if, in his opinion, there is sufficient evidence to put the accused on trial for the offence charged, or any other indictable offence in respect of the same transaction, order the accused to stand trial, or b) discharge the accused, if, in his opinion on the whole of the evidence, no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[14] This section does not set out the test to be applied. Clarification and direction have been provided by various courts, most notably the Supreme Court of Canada in the oft cited case of U.S.A. v. Shephard, [1977] 2 S.C.R. 1067. Therein, the test for committal is articulated as follows:

The justice is required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[15] This is not an onerous threshold. A preliminary hearing judge is to take the Crown's evidence at its highest, and if after doing that, there are competing inferences that could reasonably be drawn, no matter how many, if just one could, and the operative word is 'could', lead to a conviction then a committal must be ordered. If there are various possible inferences, one cannot be preferred over another. Even when a case is purely circumstantial, the task of limited weighing never requires consideration of the inherent reliability of the evidence. In these circumstances, I am to assess the reasonableness of the inferences to be drawn from the evidence.

[16] Apart from circumstantial evidence and possible inferences, if there is direct evidence on a point, I do not in any way engage in a weighing of that evidence, nor do I assess credibility. As a preliminary hearing judge I do not make specific findings of fact. The question is, could a reasonable jury, properly instructed and acting reasonably, convict the accused of the offences for which they are charged?

Legal Framework for Conspiracy

[17] Beyond the statutory provisions respecting preliminary hearings, and the committal test and how it impacts evidence assessment, what is the relevant statutory framework respecting the charged offences?

[18] As to conspiracy, the essential elements are as follows:

• there must be an agreement between two or more people;
• this collection of people must have an intention to agree to commit a criminal offence;
• the agreement must be complete, which isn't to be confused with the full completion of the crime; that is, the conspiracy is complete before any acts are taken to put the agreement into effect; and
• there must be evidence of a common design to do something unlawful or something lawful by illegal means.

[19] There needn't be evidence that an accused actually participated in the ultimate acts contemplated by the agreement.

Party Liability

[20] As to parties to an offence, I must turn my mind to section 21 of the Criminal Code, which provides that:

21. Everyone is a party to an offence who a) actually commits it; b) does or omits to do anything for the purpose of aiding any person to commit it; or c) abets any person in committing it.

[21] The Supreme Court of Canada has provided some fairly recent guidance when it comes to conspiracies and party liability, which I will address shortly.

[22] On the conspiracy counts, my task is to determine, keeping the just-mentioned threshold and statutory provisions in mind, whether there is some evidence upon which a reasonable jury, properly instructed, could conclude, first, that a conspiracy exists and second, that the charged individuals were involved in coming to that agreement. I will address each count in turn and indicate whether or not each of the accused within that count are committed.

Count One: Thu Tran

[23] First, count one. At this stage, given what has transpired to this point relative to the other accused, I am considering only the question of Thu Tran's role in this piece. Mr. Millar, on her behalf, opposes committal placing heavy reliance on the recent Supreme Court decision of R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565. The Crown, in arguing for committal, highlights the fact Ms. Tran used her real estate credentials to show homes to undercover officers, after these officers referenced commissioning a grow operation; that she referred the officers to Tuan Vu, an electrician; and that she made certain utterances indicating an understanding of marijuana grow operations. In his written materials, Mr. Millar reproduces paragraphs 42 and 43 of the J.F. decision, where Justice Moldaver indicates the following:

[42] That brings me to the broader approach endorsed in McNamara and the central issue in this appeal – namely, whether party liability can attach to someone who knows of a conspiracy and who does (or omits to do) something for the purpose of furthering its unlawful object.

[43] With respect to those who hold a different view, I have concluded that it should not. Party liability should be restricted to conduct that aids or abets the formation of the agreement that comprises the essence of the crime or conspiracy. In all other cases, a conviction for conspiracy will not lie absent proof of membership in the conspiracy.

[24] In an attempt to apply this to these facts, Mr. Millar argued the following in his factum:

……accordingly, the Crown's evidence showing that Tran was willing to provide real estate services that made it more likely that a marijuana grow operation would be successfully commissioned at 15 Bow Street, London, is to be applied to the question of whether she was a principal member of the conspiracy to produce marijuana illegally.

[25] Is there evidence before me putting Tran as a member of a conspiracy? Mr. Millar argues that, at its highest, the court can only conclude Ms. Tran suspected something sketchy was going to happen in that residence, once purchased. He asks that I pay particular attention to one piece of evidence; Ms. Tran's comment to the UC officer which was to the effect of "I don't want to know what's going to go on in that property as it is none of my business". I am urged to conclude that the decision in J.F. specifically precludes a committal on these facts.

[26] The Crown argues that what J.F. does is limit the scope of conduct, when addressing party liability to conspiracy, to behaviour and actions that aids or abets the formation of the agreement. In its factum, paragraph 46 of the J.F. is reproduced:

[46] …..to aid and abet a crime it is necessary not merely to help the criminal, but to help him in the commission of the particular criminal offence. A person does not aid and abet a conspiracy by helping the conspiracy to commit a substantive offence, for the crime of conspiracy is separate from the offence which is its object. It is necessary to help the conspiracy in the commission of the crime of conspiracy, that is, in the commission of the act of agreement. Only then is it justifiable to dispense with the necessity of proving commission of the act of agreement by the defendant himself. In all other cases, to convict the defendant of conspiracy it is necessary to provide not only knowledge on his part that he was helping in a wrongful enterprise, but also knowledge on another's part that he intended to do so, and at least a tacit agreement to give and accept such help.

[27] The Crown urges me to look at the evidence as a whole and to not focus solely on the individual points highlighted by Mr. Millar. Its position is essentially set out at paragraphs 41 through 46 of its written submissions, where it recounts Ms. Tran's conversations with each of UC officer Nguyen and Issa (sp?). The Crown further relies on the following facts – first, that Ms. Tran said she needed to know the name of the person on title to check credit; second, that she advised Manh Nguyen that the second real estate agent for the farm is 'trustworthy'; third, that she took a further opportunity to advise Manh Nguyen how much income he should disclose; and that just prior to meeting with Tuan Vu, she told Manh Nguyen that he can trust him.

[28] I am being asked to conclude that it would have been clear from the context of her conversations with Manh Nguyen, that he was involved in the business of growing marijuana, because she said things such as she "knew what he was looking for", and communicated information about the farm property, specifically the nature of the electrical hook-ups and so on.

[29] Finally, the Crown points to statements Ms. Tran makes relevant to the placing of crops in the field to ensure the farm property she was then showing didn't attract undue attention, and that respecting the sale of the home at 15 Bow Street it was abundantly clear from the evidence and the context that this was to facilitate a grow operation.

[30] The cumulative effect of all of this, it is argued, is there was an implicit agreement to produce marijuana at 15 Bow Street. The Crown's position is best captured within paragraph 48 of its written submissions:

….her actions are designed to facilitate the purchase of the house, not as a real estate agent, but as a person who can assist in viewing the house for its viability as a grow operation and who can assist in obtaining financing in spite of the fact that Manh Nguyen's business of growing marijuana is a cash only business.

[31] Mr. Millar counters that, even if I draw every inference that favours the Crown, and even after taking this evidence at its highest, the most I can conclude is that Ms. Tran suspected that the house she was looking to sell would be used as a marijuana grow-op. This, he contends, may not rule the day, but when it's considered in combination with all of the facts, including her comment that "what was to occur there was none of her business" and that after the sale she no longer wished to see them again, that given the court's comments in J.F., there would be only one conclusion open to a jury, which is Ms. Tran did not aid or abet a principal to an agreement, even if she furthered a crime.

[32] In the result, Ms. Tran is discharged on count one. As indicated, she may have facilitated and furthered the commission of the anticipated crime of production, but it would not be open for a jury to conclude she was involved in the forming of an agreement.

Counts Three, Four, Five and Six: Cong Nguyen and Derek Pedro

[33] Respecting Cong Nguyen, he will be committed to stand trial on counts three, four, five and six. Respecting Derek Pedro, he will be committed to stand trial on counts three, four and five.

Count Two: Cong Nguyen (Chatham Warehouse)

[34] That leaves me to consider, relative to Cong Nguyen, the sufficiency of the evidence respecting count two, and relative to Derek Pedro, the sufficiency of the evidence respecting count six.

[35] First, count two. Is there some evidence upon which a reasonable jury, properly instructed, could convict Cong Nguyen of the conspiracy respecting what I will call the Chatham warehouse?

[36] In support, the Crown relies upon the evidence of Officer Manh Nguyen. In its written submissions, the Crown refers to the fact that on March 30, 2012 UC Officer Nguyen advises Bui that he plans to "do a warehouse with 300 bulbs". It is during this same meeting that Officer Jimmy Dang and Bui discuss planting issues at the warehouse – i.e. water, soil type, and the like. This is followed by Bui escorting Manh Nguyen and Jimmy Dang to Cantek to meet Cong Nguyen. The Crown references a meeting between Manh Nguyen and Cong Nguyen on May 9, 2012 and how, between March 30 and May 9, Bui and Nguyen plan a trip to view the warehouse.

[37] The Crown also relies on Manh Nguyen's testimony wherein he details a conversation between himself and Cong Nguyen, with Bui the topic of discussion. During this conversation Manh Nguyen testified that Bui had found other work and in doing so makes some utterances and hand gestures which seemed to differentiate between legal and illegal grow operations; at least this was the interpretation.

[38] On that same date, there was a further discussion where Cong Nguyen, in specifically addressing the Chatham warehouse, explains why Bui doesn't want to continue his involvement. The exact quote attributed to Bui is: "One side is safe, the other is not." There is no further elaboration. There is also evidence that Cong Nguyen provided specific instructions to Manh Nguyen on how to get the necessary supplies in order to set up the warehouse.

[39] Counsel for Cong Nguyen submits that there is a complete lack of evidence on this count, arguing there is no evidence as to intent to establish an agreement. He submits that, at its highest, he is selling equipment to a suspected drug dealer that will be utilized and will facilitate someone's trafficking activities. He argues there is authority for the position that this, alone, would not amount to a conspiracy, referencing the J.F. decision, in particular this passage:

….party liability to a conspiracy is limited to cases where the accused encourages or assists in the initial formation of the agreement, or when he encourages or assists new members to join a pre-existing agreement.

[40] After considering both positions, I agree with the defence position that respecting this count and the Chatham warehouse, although there was an agreement established to sell equipment, it would not be reasonable, and therefore not open to a jury, to find there was an agreement to produce marijuana at that warehouse; at least not one that involved Cong Nguyen. I essentially adopt Mr. Marzel's reasoning as it's set out in paragraph 27 of his written submissions:

The evidence established that Cong Nguyen had knowledge of the existence of a scheme to commit a crime producing marijuana and engaged in an act in furtherance of that scheme, selling hydroponic equipment. However, conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by doing acts in furtherance of that scheme.

[41] Buyers and sellers, in the context of drug trafficking, are not co-conspirators, and that logic can be extended to this fact scenario and would form an important aspect of a proper jury instruction. And although there can be implied agreements and a common design that develops short of an express agreement reduced to precise words or written contracts, here the evidence, at its highest, is Cong Nguyen agreed to sell items with the knowledge, or in the least a pretty good suspicion, as to what they were going to be used for. Nothing else would be reasonably open for a jury to conclude.

[42] Cong Nguyen is discharged on count two.

Count Six: Derek Pedro

[43] Lastly, count six as it relates to Derek Pedro. I have already indicated Cong Nguyen will be committed to stand trial on this particular count, which, in effect, is a rejection of Mr. Lewin's argument which is set out in paragraphs four and five of his written submissions.

[44] Given the entire context of the events of May 10, and given the various calls, surveillance, and the reference to "plants" (which is captured in the conversation between Derek Pedro and Cong Nguyen on May 10), there is sufficient circumstantial evidence to have this particular issue set over for trial.

[45] Respecting the evidentiary issues set out in paragraph seven and eight of Mr. Lewin's written submissions, which relate to certain utterances, statements and phone conversations, I conclude this is an issue that would ultimately need to be decided by the trial judge, which, if determined in favour of the Crown, would permit that question of Mr. Pedro's guilt being put to the jury.

[46] Although I agree the video evidence showing Mr. Pedro setting a box into the van would, on its own, be insufficient to commit, there is more that a jury would have to consider, one of the inferences then open to it being entirely consistent with Mr. Pedro's guilt. He is committed to stand trial on count six.

Summary of Dispositions

[47] To summarize, Tuan Vu is discharged on count one. Thu Tran is discharged on count one. Cong Nguyen is discharged on count two, but committed to stand trial on counts three, four, five and six. Derek Pedro is committed to stand trial on counts three, four, five and six.

September 10, 2014

Justice Jonathon C. George