WARNING

The court hearing this application directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 539(1) , (2) , (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539 (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction

(4) [Repealed, 2005, c. 32, s. 18(2) .]

R.S., 1985, c. C-46, s. 539 ; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18 .

OSHAWA COURT FILE NO.: 12768/11

DATE: 20120125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – VU TUAN NGUYEN and STEPHANIE PHAM Respondents

L. Crawford, Assistant Crown Attorney

L.C. Beechener on behalf of R. Pillay, for the Respondent V.T. Nguyen W. Jaksa for the Respondent S. Pham

HEARD: December 20, 2011

QUINLAN J.

APPLICATION

[ 1 ] This is an application for an Order of mandamus with certiorari in aid. The Applicant Crown seeks to quash the discharges of Vu Tuan Nguyen and Stephanie Pham on various drugs and weapons offences. The Applicant further seeks an order directing the preliminary inquiry judge to commit the Respondents for trial on those charges.

OVERVIEW

[ 2 ] The facts set out in the Applicant’s factum, as amplified by those set out in the Respondent Nguyen’s factum, are set out herein. The Respondent Pham did not file a factum.

[ 3 ] On August 25, 2010, the Gun and Gang Unit of the Durham Regional Police Service embarked on an investigation into an unrelated individual. During the course of their surveillance of this individual, they observed what they believed to be a drug transaction in an Acura motor vehicle which was parked in a plaza in Toronto.

[ 4 ] The Respondent Vu Tuan Nguyen was seen to get out of the driver’s seat of that motor vehicle. Mr. Nguyen and the passenger, later determined to be Devon Victor, shook hands and hugged and then parted ways. Devon Victor got back into a taxi and was later arrested. The police located two ounces of crystal methamphetamine in Mr. Victor’s possession.

[ 5 ] The police returned to the Acura motor vehicle. It was parked in the same location as before. They watched as Mr. Nguyen approached it and got into the driver’s seat. The Respondent, Stephanie Pham boarded the front passenger seat. Police then conducted a takedown of the Respondents, and the group of people who were getting into a vehicle nearby and believed to be associated with them.

[ 6 ] Upon the arrest of the Respondents, police located over $8,000 in Canadian currency in Mr. Nguyen’s pockets and in the glove compartment of the motor vehicle. There was also a cell phone seized from the passenger seat of the motor vehicle, and several sets of keys.

[ 7 ] Police received information that led them to 219-200 Manitoba Street, in Toronto. Due to further observations made there, they obtained a search warrant for that address. Inside that condominium, police located more crystal methamphetamine, cocaine, cutting agents, cell phones, drug paraphernalia and keys.

[ 8 ] The warrant also authorized the police to search the cell phone seized from Ms. Pham. Upon the search of this phone, police located a number for “Storage”. This was determined to belong to the Public Storage facility located at 2 Mendota Road in Toronto.

[ 9 ] Police obtained a search warrant for the storage unit and opened it with a key found on the key ring located in Ms. Pham’s purse. Inside that storage unit were four gun boxes which no longer had the firearms inside, and 362 rounds of ammunition for eight different calibres of firearms.

[ 10 ] The preliminary inquiry proceeded over multiple days before Beninger J. On June 24, 2011, the preliminary inquiry judge committed Mr. Nguyen for trial on the charge of trafficking in crystal methamphetamine, and a charge of breach of probation, both of which related to the transaction with Devon Victor. Ms. Pham was committed for trial on the charge of possession of ammunition for the purpose of trafficking, which related to the ammunition found in the storage unit.

[ 11 ] The preliminary inquiry judge concluded that there was insufficient evidence, direct or circumstantial, that could lead to the inference that:

(i) the Respondents had knowledge and control of the crystal methamphetamine found in the apartment at 219 – 200 Manitoba Street. He therefore discharged the Respondents on the charge of possession of crystal methamphetamine for the purpose of trafficking;

(ii) Mr. Nguyen had knowledge and control over the contents of the storage unit. He therefore discharged him on the charges of possession of ammunition for the purpose of trafficking, possession of ammunition while prohibited, and trafficking in firearms; and

(iii) Ms. Pham transferred firearms from the storage unit in Toronto. He therefore discharged her on the charge of trafficking in firearms.

[ 12 ] The Applicant Crown applies to this Court on the basis that the preliminary inquiry judge committed jurisdictional error by:

(a) failing to consider all of the evidence and inferences in favour of the Crown in establishing a connection between the Respondents and between the Respondents and the address of 219-200 Manitoba Street, Toronto and exceeding the limited weighing he was entitled to do;

(b) failing to consider all of the evidence and the inferences in favour of the Crown by not considering the evidence of “insulation techniques” testified to by the expert witness and incorrectly applying the test for accepting expert evidence in that area; and

(c) failing to consider all of the evidence and inferences in favour of the Crown in addressing the evidence of the expert witness and the evidence of London Police Officers regarding a related firearm seized by them.

[ 13 ] The Respondents oppose the Crown’s application. Their position is that the preliminary inquiry judge’s determinations with respect to the sufficiency of the evidence led at the preliminary inquiry were both reasonable and correct. Beninger J. considered the whole of the evidence, and did not choose between competing inferences. If any errors were made by the preliminary inquiry judge they were non-jurisdictional in nature, and thus not reviewable by way of certiorari .