Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

M. MacDonald, for the Crown

— And —

Tin Tran

I. Grant, for the defendant(s)

Heard: March 15, 2016

Decision

FELDMAN J.:

[1] Application for Stay of Proceedings

[1] Tin Tran is scheduled for trial on April 11, 2016 on a charge of Possession for the Purpose of Trafficking in Marihuana (PPT-M), 22 ½ months after being charged. He asks that his charge be stayed under s. 11(b) of the Charter of Rights and Freedoms on account of undue delay. The Crown submits to the contrary.

[2] It is conceded that the length of time taken to reach the trial date in this court warrants an inquiry into the reasonableness of the delay.

Background

[3] On May 28, 2014, the Applicant was arrested and charged with PPT-M, PPT-C (cocaine) and Possession of the Proceeds of Crime (PPT). These charges arose out of a search of his residence during the course of a large and complex investigation by the Guns and Gangs Task Force of rival street gangs trafficking in drugs and firearms, as well as attempting to murder their adversaries.

[4] In the course of their search, police seized a cell phone belonging to the Applicant. This phone would later provide the circumstantial basis for a further more serious charge against him of Participation in the Activities of a Criminal Organization (Participation).

[5] Mr. Tran was one of seven accused charged in an Information containing over 50 counts that included a Conspiracy to Commit Murder (Conspiracy) count, in addition to numerous serious gun and trafficking charges, all arising from a massive takedown of members of these gangs.

[6] The Conspiracy count involved 3 co-accused in relation to whom surveillance evidence indicated the Applicant was associated. Peter T.D. Nguyen was one of the co-accused. They were all members of the street gang, 'Asian Assassinz'.

[7] The charge alleged that those three men agreed to murder Peter L. Nguyen, a member of a rival gang, 'Chin Pak'. The murder was not carried out. The Applicant was not charged with this offence that would be the focus of a preliminary inquiry that included, as well, Mr. Tran's unrelated drug charges, together with other serious charges involving multiple accused.

[8] The Conspiracy charge was based on police and audio surveillance, the latter from a single car probe, on a day the 3 co-accused were observed driving near the Mississauga home of the intended victim. The Crown's theory was that there was a plan to place a GPS tracker device on the target's motor vehicle in order to later facilitate his murder, a method purportedly used in other murders or attempted murders as between these rival gangs.

[9] This incident occurred about 3 months after the attempted murder of Peter L. Nguyen's brother, Duy Ly Nguyen, also a 'Chin Pak' member. This was not a strong case, as central to it was the testimony of Duy Ly, a reluctant, if not hostile witness for the prosecution.

[10] To understand the Crown's theory on the Conspiracy charge, it is helpful to provide a context to Duy Ly's potential evidence. The same night he was shot, one Jaimie Dang, a member of the 'Asian Assassinz', was treated in hospital for a bullet wound. His abandoned car had bullet holes.

[11] Mr. Dang was charged with the attempted murder of Duy Ly. Of significance, Peter L. Nguyen was present at the shooting of his brother. The evidence permits an inference he returned fire at Jaimie Dang that in turn leaves open a further inference that the Conspiracy allegations were motivated by a desire to avenge the shooting of Dang.

[12] After recovering, Duy Ly Nguyen told the police on May 29 that he found a GPS tracker on his wife's car, but threw it out. On June 3, his brother-in-law, Bangle Nguyen, said he also found a tracker on his car but got rid of it a couple of months earlier. As well, on June 3, Duy Ly asked police what would happen if the tracker or a photo of it showed up at the police station. The officer indicated he would work with the serial number to find out who put the GPS on his wife's car. Shortly thereafter, police received such a photograph in the mail.

[13] The serial number in the photo matched up with that of a GPS found on the car of another 'Chin Pak' murder victim, Peter 'Bird' Nguyen, reinforcing the inference that rival gangs were using GPS devices to track their adversaries in order to kill them.

[14] This evidence tended to support the prosecution's theory on the conspiracy charge that the 3 co-accused obtained Peter L. Nguyen's home address in order to place a tracking device on his car. The Crown submits that a central pillar of his theory is that the Duy Ly tracker was connected to the GPS box found at Peter 'Bird' Nguyen's apartment together with subscriber records from Rogers Wireless linked to 'Peter Nguten', all of which relied on the testimony of Duy Ly to draw this linkage, a tenuous evidentiary basis, at best. This was a weak case.

[15] Police were unable to meet with Duy Ly prior to the preliminary inquiry. Called to give evidence, Duy Ly denied sending the photograph of the tracker, a not unexpected result.

[16] The three co-accused were discharged on the Conspiracy charge.

The Applicant's Connection to the Conspiracy Count

[17] The Applicant's cell phone and that of Peter T.D. Nguyen were seized during searches of their residences. One month after his arrest, police extracted data from Mr. Tran's phone. In October, the data was examined and two police reports generated. The data indicated that Mr. Nguyen provided a license plate number to the Applicant, who in turn received a name and address for it from a corrupted employee with the Ministry of Transportation and Communications. He passed on this information to Mr. Nguyen.

[18] The defence conceded there was evidence linking the accused to the apartment where the phone was found and that he was an acquaintance of several of the co-accused. This was the core evidence that supported a charge of Participation against the Applicant in the context of the Conspiracy charge.

[19] In fact, at the first Judicial Pre-Trial (JPT), held on December 3, the Applicant's counsel was informed there would be further charges, although no details were provided. On March 25, a new Information, Conspiracy to Traffic in a Controlled Substance, unrelated to the Conspiracy to Commit Murder charge, was put before the court. It is not clear when prior to the Preliminary Inquiry the Applicant was made aware of the possibility of a Participation charge, if at all.

[20] On the first day of the Preliminary Inquiry, Sept 15, 2015, almost 16 months after Mr. Tran was arrested, the Crown added a Participation charge against the Applicant. The Crown described Mr. Tran as an integral part of the narrative of the Crown theory on the Conspiracy to Commit Murder Charge that he says was facilitated by the Applicant's participation.

[21] The evidence supporting the Participation allegation was known to the Crown almost a year prior to the commencement of the Preliminary Inquiry. Nine months prior to that hearing, the Crown indicated to the Applicant the possibility of additional undefined criminal jeopardy. The Crown has provided no reasonable explanation for the significant delay in laying this charge beyond an inference that prosecution discretion and the convenience of joining a peripheral party to a multi-accused Information outweighed that party's security interests.

[22] Following a 3-week Preliminary Inquiry that focused substantially on the Conspiracy allegations, the Crown did not seek committal on the Conspiracy to Commit Murder and Participation charges. In effect, the case against Mr. Tran on the Participation allegations collapsed almost as quickly as it started.

[23] The accused was committed for trial on PPT-M, but discharged on Conspiracy to Traffic in a Controlled Substance, PPT-C and PPC, although Mr. Tran conceded committal on the latter count.

[24] The Crown laid a new Information on the PPT-M count so that this absolute jurisdiction offence could be tried in the court. April 11 was the "earliest date offered by the trial co-ordinator" for the setting of a trial date.

Positions of the Parties

[25] Ms. Grant, for the Applicant, concedes her client was bound up in a complex prosecution that involved six other accused. She submits, however, that in relation to Mr. Tran, he was subject to undue delay by failure of the Crown to assess the strength of his case, including the Participation charge, in a timely manner. This, she says, has led to an infringement of the Applicant's security interests, described in the authorities as encompassing "protection against the overlong subjection to vexations and vicissitudes of a pending criminal accusation". This contemplates stigmatization, loss of privacy, stress and anxiety, legal costs and uncertainty as to outcome and sanction: see R. v. Askov, 59 C.C.C. (3d) 449; R. v. Morin, 71 C.C.C. (3d) 1. She says the length of the delay here permits an inference of prejudice, particularly with regard to the inevitable stress and unease from delay of a matter that could have been tried in this court within a relatively short time.

[26] Ms. Grant points out that the question of the reasonableness of any delay must be viewed in the context of the total period of time from arrest until the anticipated conclusion of the trial: see Morin, at para. 13. Morin sets the guideline in this court at 8-10 months, although more recent authority suggests inclining to the lower end of the guideline given the time the prosecution has had to improve upon limits to institutional resources: see R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.); R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.).

[27] Mr. MacDonald, for the prosecution, submits that the inherent time requirements for this multiple-accused proceeding required the time involved here for him to present his case and that the Applicant, as noted earlier, was an integral part of the prosecution theory regarding the Conspiracy charge. He says that the Crown need be granted latitude in how to exercise its discretion in proceeding, even in relation to an accused whose involvement in a complex matter is minor, discrete or even disconnected from the larger prosecution: R. v. Khan, 2011 ONCA 173. He implies that the court should not fall into the trap of viewing what occurred here in a pristine hindsight fashion that fails to account for the importance of Crown discretion to test evidence, even if weak, in serious cases at the preliminary inquiry stage.

Was the Delay Undue and Were the Applicant's s. 11(b) Rights Infringed

[28] These issues need be considered in the context of this multi-count information. Mr. Tran's drug and proceeds charges were bound up with those of other rival gang members and properly part of this large proceeding. But for the participation charge, I don't read the Applicant as seriously challenging the reasonableness of the delay involved in bringing the accused and others to Preliminary Inquiry on the drug and firearms counts. In this regard, the disclosure was extensive, 4 judicial pre-trials were required and not all counsel had been retained even as late as July 2015.

[29] Ms. Grant appears to suggest that if the Crown had spent any time weighing the weakness of the Participation charge and decided in a manner consistent with the ultimate result, the Applicant could have had his trial on the PPT-M within a reasonable time and not been subject to infringement of his security interests. It ignores the fact that there were other charges he was facing that arose from the investigation and multiple arrests.

[30] The Participation charge was indeed weak, but in my view the circumstantial evidence available to the Crown permitted a prima facie inference that the Applicant had provided assistance to his co-accused on the Conspiracy charge. The evidence was known to the Applicant. I agree with the Crown that the evidence of Duy Ly Nguyen had the potential to broaden the narrative on the Participation charge.

[31] It was open to the Crown to lay the Participation count. It had to have been done sooner, but did not take away from the right of the prosecution to exercise its discretion in adding it to the Information, as well as maintain the Applicant's other charges as part of the preliminary inquiry proceeding. I am mindful of the comments of Karakatsanis J. (as she then was) in Khan that, "the court should be hesitant to second-guess the Crown's decisions on how to proceed and whether and when to withdraw charges, particularly in complex prosecutions where decisions are contingent upon interdependent circumstances".

[32] Following the Preliminary Inquiry, the Crown laid a new Information to permit the Applicant to have his trial on PPT-M in this court, as it turns out, within 6 months, rather than leave him to be part of a larger trial in the OSC on numerous drug and firearms charges sent up to trial.

[33] In the circumstances, following a Morin analysis, I am not satisfied on a balance of probabilities that the Applicant's security interests have been violated, nor that he has suffered unacceptable prejudice from undue delay. The application is dismissed.

[34] Mr. Tran's trial will proceed in this court.

Released: April 5, 2016

Signed: "Justice L. Feldman"