Introduction

[1] As of the July 17, 2014 date of this hearing, the accused, Hung Binh Tran, faced some 15 criminal charges in a 30-page indictment that included 133 counts against him and numerous other individuals. Those charges arise out of the Guns and Gangs Task Force “Project Battery” investigation conducted in concert over the past six to nine months by numerous branches of the Toronto Police Service (TPS). That indictment was to be amended last Friday to include the further charges that arise out of the product of the searches conducted at the residences and places of business of the individuals arrested and charged in these matters. The premises of those individuals were searched under warrant on May 28, 2014, following the citywide takedown conducted that day. That will increase the total number of counts to 192. The specific charges faced by Mr. Tran will increase from 15 to 25.

[2] The specific charges that Mr. Tran faces include (i) allegations of conspiracy to commit murder; (ii) allegations of trafficking in controlled substances; (iii) his alleged possession of very significant quantities of an extensive variety of illicit drugs for the purposes of trafficking; and (iv) his alleged laundering of proceeds of crime. He faces those charges both on his own and/or as part of and for the benefit of a criminal organization. He is also charged with (v) possession of some $45,000 in Canadian currency knowing it to be the proceeds of crime; and (vi) the possession and improper storage of a loaded .40 calibre Jericho semi-automatic handgun, and three high capacity clips of ammunition, two of which were loaded and ready to use; as well as (vii) being an alleged member of and instructing others to commit crimes for the benefit of a criminal organization. It is alleged that these offences were committed by the accused in Toronto, between March 19 and May 28, 2014.

[3] The “Project Battery” investigation conducted by the TPS involves the violent rivalry between several street gangs, particularly the “Asian Assassinz”, and “Chin Pac”. It is claimed that the territory of the Asian Assassinz gang is the area bounded by Spadina Avenue to the east, Bathurst Street to the west, King Street West to the south and College Street to the north. From 2002 until 2010, members of that gang and an aligned gang, the “Project Originals”, have been victimizing that neighbourhood. The offences committed have included murder, aggravated assault, armed robberies, robbery, firearm trafficking, firearm possession, drug trafficking, assaults and mischief.

[4] The violence between the two rival gangs escalated, starting in 2010. A Chin Pac member was stabbed and his face slashed at the Guvernment nightclub. He was uncooperative with the police. A week later, Tien Pham, the brother of this accused, was murdered in the Excellent Chinese Food Restaurant on Spadina Avenue. He was sitting in the restaurant when a male suspect approached and shot him in the head. The assailant fled and has not been identified. That was the beginning of a series of back-and-forth tit-for-tat violent incidents.

[5] A number of shootings took place in the year and months prior to the arrest of this accused and the others charged in this matter. On March 30, 2013, an Asian Assassinz member, Michael “Montana” Nguyen, was shot and killed at the Yorkdale Shopping Centre. Another member of that gang, Than Dahn “Danny” Vo, was also shot, but he survived. When he was killed, Michael “Montana” Nguyen was in possession of a handgun and a BlackBerry cellphone. Both were seized by the police. The phone was decoded. It was determined to contain encrypted emails that discussed the importing and trafficking of firearms and illegal drugs. Those emails also revealed plans to murder members of the rival Chin Pac gang. Shortly after this murder, on May 11, 2013, several members of the Chin Pac gang were shot through the windows of the Joey’s Restaurant at the Yorkdale Shopping Centre.

[6] Just over a month later, in June 2013, one of the associates of the Asian Assassinz gang, Byron Linares, was shot to death by his girlfriend at 35 Empress Avenue, Apartment No. 909, in Toronto. That apartment is leased by another Asian Assassinz gang member, Peter “Bird” Nguyen, who was also later murdered. The police located a loaded Glock .22 calibre semi-automatic handgun in that apartment, with the serial number filed off. That was the weapon that was used to kill Mr. Linares. It had a cartridge chambered and ready to fire, and eight rounds still in the 15-round overcapacity magazine. That apartment also contained a virtual armoury of weapons and related paraphernalia.

[7] Also found in the apartment of that deceased Asian Assassinz gang member were pictures of Stephen Livingstone, the Asian Assassinz gang member who had been stabbed and slashed at the nightclub, and copies of the driver’s licence of Than Tung Phan, the brother of Jerry Phan. Those were two of the men shot at the Yorkdale Shopping Centre. Importantly, the police also identified the fingerprint of this accused, Hung Binh Tran, on the photo of Than Tung Phan that was found inside that apartment. Than Tung Phan is a member of the Chin Pac gang, and he is the person charged with the murder of Peter “Bird” Nguyen. The fingerprints of this accused, Hung Binh Tran, were also found elsewhere inside Mr. Linares’ apartment.

[8] A number of further back-and-forth shootings took place between the beginning of December 2013 and the end of March 2014, some of which resulted in murders: (i) Asian Assassinz member Michael Quan shot in the leg on December 6, 2013; (ii) Chin Pac member Duy Ly Nguyen shot 14 times outside his parents’ home on Christmas Day, December 25, 2013; (iii) Project Originals members Premier Hoang and Brenda Pathammavong murdered in their car in Richmond Hill on January 8, 2014, while associate, Brandy Pathammavong, survived; (iv) Asian Assassinz member Peter “Bird” Nguyen murdered outside a restaurant on February 4, 2014; and (v) Asian Assassinz associate Hung Phan murdered in the west end of Toronto on February 8, 2014.

[9] On February 24, 2014, TPS received judicial authorization to intercept private communications to assist in the investigation of the vicious activities of these gangs.

[10] Then to bookend this carnage, Ngoc Ngo was murdered at the front door of his home address in the west end of Toronto on March 25, 2014. He is believed to have been a totally innocent person, but unfortunately he happened to be the father of Chin Pac member Than Ngo, his son, who was believed to be the actual target. Then, on April 10, 2014, Than Tung Phan was arrested and charged with the murder of Peter “Bird” Nguyen on February 4, 2014.

[11] In the meantime, after judicial authorization for wiretapping was granted in February, on March 19, 2014, police intercepted the communications involving this accused and the other individuals, Martino Kim Hoang Phan and Peter Truong Dinh Nguyen, that are alleged to form the foundation of the charge against them of conspiracy to murder Peter Long Nguyen (no relation).

[12] Ultimately, Project Battery and its suspects were “taken down” on May 28, 2014, as many search warrants were executed throughout Toronto and numerous individuals were arrested, including this accused. The execution of the search warrants at 38 Joe Shuster Way, Unit 1420; 125 Western Battery Road, Units 1211, 1811, and 2516; and at 1600 Keele Street, Unit 1124, yielded extensive quantities of illicit controlled drugs, contraband money, and firearms.

[13] On that same day, May 28, 2014, TPS members also executed a search warrant at 18 Valley Woods Road, Unit 807. That is the condominium residence of this accused. They located $49,950 in Canadian currency inside a box at that residence, which was seized as proceeds of crime. They located a considerable quantity of illegal drugs, including cocaine, MDMA capsules, crystal methamphetamine, ecstasy, MDMA powder, and ketamine. They seized a money counting machine. They located “memorials” for two of the gang members who had previously been killed, Michael Nguyen and Peter “Bird” Nguyen.

[14] That same day, TPS members also executed a search warrant at a business called “Sexy Nails”, located at 3478 Lawrence Avenue East, Unit 2. The keys for that business and for a locked cupboard in a storage room at the back of that location were obtained from this accused, Hung Binh Tran. They were located on the counter inside his condominium when it was raided the same day. One of the keys unlocked the front door, and one unlocked that cupboard. Inside that cupboard, the police found significant quantities of cocaine, crystal meth, and marijuana. The aggregate value of all of those drugs, at the two locations, is estimated to range somewhere between about $102,000 and $116,600. At the salon, the police also found a .40 calibre Jericho semi-automatic handgun with three magazines, two with rounds and one empty; a black mask; a black hoodie and black gloves; and $2,215 in Canadian currency.

[15] Hung Binh Tran is plainly associated with that business, on his own admission and on the evidence of his proposed sureties and in corporate documentation, either as an employee or as an employee-manager of some sort, or indeed possibly as the owner of that business. This issue is discussed below. His common law wife, Nguyet Tue Tran, who was one of the three proposed sureties, also works as an employee at that location, as does his cousin, Duc Van Nguyen, who was proposed as the third surety.

[16] It is against that background that Hung Binh Tran appears before this court seeking to be released on bail pending his trial. He has brought an application for judicial interim release to this court pursuant to s. 522 of the Criminal Code. The charge of conspiracy to commit murder moves the jurisdiction whether to grant judicial interim release to this court. All of these offences are reverse onus offences save two. Plainly the offences are numerous and, equally plainly, they are extremely serious. If convicted, the accused will face a very lengthy period of incarceration.

[17] The accused has put forward a plan of release and he contends that he has “shown cause” why he should be released on strict bail conditions. The Crown is vigorously opposed to this application, and contends that the accused has not “shown cause” why he should be granted bail. Counsel for the Crown contends that the continued detention of the accused in custody is justified on both the secondary and tertiary grounds. The Crown argues that this application for release should be dismissed.

The Governing Legal Principles

[18] Section 515(10) of the Criminal Code spells out the only statutory grounds for the pre-trial detention of an accused. It states:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds (my emphasis):

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) 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; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including: (i) the apparent strength of the prosecution’s case; (ii) the gravity of the offence; (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

The Personal Circumstances of the Accused

[19] As previously noted, the accused is now 25 years old and a Canadian citizen. He has a previous criminal record. It reflects one attempt to obstruct justice offence, three convictions for fail to comply offences, either with the terms of a recognizance or with the disposition of a matter, and one conviction of personation with intent. He has also been convicted of an offence since those recorded on the CPIC record, namely, assault with a weapon.

[20] The accused claims to be employed as a technician at the Sexy Nails salon. He may well have been an employee, but his relationship with that establishment and whether he also has or had an ownership role in the running of that business was not clear. Duc Van Nguyen, his cousin and one of the proposed sureties, testified that the accused had once owned that business, but that Duc then bought the business. Duc claimed, however, that his father has now bought the business. He is Hung Binh Tran’s uncle. Duc also claimed to be a sometime owner, but he could not clarify the role of the accused.

[21] Whether the accused owns that business remains to be determined, but according to Duc’s testimony, he is at least an employee-manager with special managerial responsibility, if not an owner-manager, and of course the fact he was in possession of the two keys, not just one to the doors of the establishment, but also the second key that permitted access to the contents of the back room cabinet, also reflects his seemingly greater stature and responsibility for that business.

The Release Plan

[22] The defence called two witnesses at this bail hearing, namely, Nguyet Tue Tran and Duc Van Nguyen. Nguyet Tue Tran is Mr. Tran’s common law wife. She is presently expecting her first child in October, and Mr. Tran is the father of that child. They have been together for three years. The second witness, Mr. Tran’s cousin Duc Van Nguyen, also testified but through a Vietnamese interpreter. The third proposed surety, Hoa Thi Pham, is Nguyet Tue Tran’s mother and the mother-in-law of the accused. She did not testify, but she provided an affidavit to the court relative to the central role she would play in his proposed plan of release.

[23] The release plan proposed by the defence was that the accused be released on a recognizance, with his mother-in-law and common law wife being the principal sureties. Upon his release, the accused would come to live with his mother-in-law and spouse in the new house that is presently being purchased at Rolph Terrace in Milton. The mother-in-law, Hoa Thi Pham, would take him to work with her at her Golden Nails salon on Jane Street in Toronto every day, and return with him to Milton every evening. His wife, Nguyet Tue Tran, her daughter, would also live there.

[24] The accused’s common law spouse, Nguyet Tue Tran, testified that she purchased that Milton house with her mother. She claims she would be available to supervise the accused at all times because she is not presently working and will be off for a year on maternity leave after their child is born in October. She claims to have some $171,000 of equity in the Milton house, namely, the amount of the down payment, to pledge in support of this surety.

[25] In her testimony, Nguyet Tue Tran acknowledged that there is a mistake in her mother’s affidavit. She claimed that mistake was her fault in translating improperly. However, it is an important error. In her affidavit, Hoa Thi Pham swears that she has never been convicted of a criminal offence, but in fact she has been convicted of eight shoplifting offences. Those plainly are crimes of dishonesty, even if they occurred 20 years ago and before.

[26] It is also important to note that there were many things that Nguyet Tue Tran did not know about this accused, her husband, or that she would not acknowledge. She did not know about drugs being in his vehicle even though she acknowledged having been in that vehicle many times. There were quantities of drugs found in that vehicle when it was searched under warrant. She knew nothing about his mother giving him money to help buy the new house. She knew nothing about guns or drugs, nothing meaningful about his friends, and she could cast no real light on how the two of them might have been able to save up the $49,500 found in their apartment, along with the money counting machine, when they were each earning generally well less than $1,000 per week. She knew that the accused “had been a hooligan in the past.” She knew that people that he knows have been killed. She also acknowledged that Martino Pham, one of the co-accused on the conspiracy to murder charge, still came regularly to see and visit her husband, Hung Binh Tran. All of this evidence was troubling to me given she was being proposed as a surety.

[27] Turning to the second surety who testified, Duc Van Nguyen, while he claims to have been a one-time owner of the Sexy Nails salon, he could cast no meaningful light on any of the corporate documentation that was put to him relative to who the registered owner of that business really was. He claims to be regularly involved in the running of that business, but he knew nothing about the locked cupboard located in the storeroom at the back of the business location. Indeed, he seemed to know little about the actual existence of that room, even though it is at a business location he claims to run. He said he did not know about any of those things, nor about the items that were found in the cupboard, including the illicit drugs and firearms. He did not know about them because he said that he did not pay attention. He did not know what the cupboard contained because he never bothered to inquire. He said he did not need to pay attention to it. I will observe that this did not fill me with confidence about whether Mr. Nguyen could be counted upon to unquestioningly fulfill the obligations that would be imposed on him as a surety.

[28] Nonetheless, Mr. Duc Van Nguyen has actually been a surety for the accused in the past. Yet when questioned about the matters in respect of which he had acted as surety, he claimed to remember nothing about it. He knew he had acted as surety for the accused in 2007, and was insistent that the accused had complied fully with the terms on his recognizance and his bail terms. He knew nothing about the additional charges that took place in Cornwall, involving assault with a weapon, and for which the accused was convicted and received 12 months’ probation. When asked to explain how it was that Mr. Tran appears to be in a management-type position relative to the running of the Sexy Nails salon, he acknowledged that Hung Binh Tran also helps them to run the store, even though he is merely an employee.

Analysis and Conclusions

[29] The accused presently faces very serious criminal charges. Some involve trafficking or the possession of significant quantities of a variety of drugs for the purpose of trafficking, some involve the possession of a prohibited firearm and ammunition, some involve possession of the proceeds of crime and some involve money laundering allegations. There are also charges that are alleged to involve being a member of and undertaking actions for the benefit of a criminal organization. And one charge involves an allegation of conspiracy to commit murder.

[30] Two things that are important must be said immediately. The accused is presumed to be innocent of these charges, and there is no basis to impute criminal liability, for the most part, by association, or to convict Mr. Tran because of who his friends are. But on the other hand, the Crown’s case against the accused appears to be a very formidable one on most of the charges. The evidence strongly suggests, at least as I understand it at this point in time, that the accused was engaged in the dangerous, illegal business of drug trafficking and had illegal possession of a prohibited firearm to assist him in that, or in other criminal endeavours. He was in possession of a virtual pharmacy of illicit drugs, some at his own residence and some more recovered at the Sexy Nails business location.

[31] It is important to the gravamen of the offences and the potential danger faced by the public from this activity that in addition to the firearm, at that location police also found three magazines, two loaded, as well as paraphernalia that is highly suspicious, including a black hoodie, black gloves and a black cap, all items suggestive of camouflage and the concealment of identity, but also items secured in the cupboard to which Mr. Tran alone appears to have possessed the key.

[32] I acknowledge Mr. Zaduk’s argument relative to the conspiracy to commit murder charge, and that the extent of the evidence the police have for that charge, at least at present, is the wiretap evidence derived from the March 19, 2014 recording of this accused and two others driving around and identifying the location of the residence of the person who was believed to be the intended target of that conspiracy, Mr. Peter Long Nguyen.

[33] The case law referred to by Mr. Zaduk, including in particular the decision of the English Court of Appeal in R. v. Patrick Joseph O’Brien, (1974) 59 Cr. App. R. 222, shows that the essence of the offence of conspiracy is agreement, and that mere talk between two or more persons about the possibility of committing some criminally wrongful act will not itself constitute an offence unless they actually agreed to commit that act, assuming it lies within their power to do so. So it may well be that the weight of the Crown’s case on that one charge is relatively light to moderate at best, or that it remains to be fully tested as all facts and relationships emerge and are supported by the evidence or not, but that can hardly be said about most of the charges that Mr. Tran faces under this indictment.

[34] With respect to most of those charges, there is hard physical evidence seized, or, as claimed, there is strong wiretap evidence or judicially authorized “body pack” evidence to tie Hung Binh Tran into the commission of extensive activities as a drug trafficker and as a member of a criminal organization.

[35] In these circumstances, where the accused bears the onus of having to “show cause” justifying his release, the accused must satisfy the court that his detention is not justified. In relation to the secondary ground, more particularly, the accused must establish that his detention is not necessary for the protection or safety of the public and that there is no substantial likelihood that, if released from custody, the accused will commit a criminal offence or interfere with the administration of justice. The release plan devised by the accused must persuasively address these issues.

[36] In my view, in light of all of the circumstances of this case, and in particular the testimony of the sureties and the proposed plan of release, the accused has not shown cause why his detention is not justified on the secondary ground. I find that the release plan offered by the accused does not satisfactorily address the secondary grounds. The accused is alleged to have committed a number of very serious criminal offences, offences which create great danger to the public. While the accused’s common law wife and his mother-in-law, and his cousin, no doubt, mean well, and want the very best for the accused, in my view they are neither individually nor collectively able to supervise him to the extent necessary to properly ensure the safety of the public, and indeed, it strikes me that they are entirely too close to the offences themselves to be able to serve that role of surety, where their first and only meaningful obligation is to this court and to uphold the accused’s compliance with any terms of release, rather than to the accused.

[37] I agree with Mr. Lennox that the proposed plan of supervision is problematic. This is an accused person who has prior failure to comply offences. That antecedent history itself necessarily requires a strong plan, given that he has breached the terms of a recognizance on two prior occasions and court orders on other occasions. That is especially so given the severity of these allegations.

[38] Moreover, in my view, the two sureties who testified are not suitable for the job. Both are entirely too close to the allegations, and indeed either could be called as witnesses in the case, although Nguyet Tue Tran may not be compellable. While they are close to the accused, surprisingly they also both claim to have absolutely no knowledge upon any of the illegal activities that are alleged against him. I find this difficult to accept. It makes little sense. Either they are disingenuous in their claims of an absence of knowledge of his conduct, given the proximity that both of them enjoy to him every day of the week, or if they have not seen any activity that was criminal in nature, given the extent of most of the evidence that is present in this case, that might arguably appear to be evidence of willful blindness.

[39] It is also problematic, from my perspective, that both sureties are connected to the Sexy Nails business. That is the very business location where so much of the hard evidence against this accused was found, and yet they claim to know nothing about any of those activities or the presence at that location of any of the items that were found there.

[40] While the Crown claims that he is not overstating the seriousness of the conspiracy charge, even if it is overstated, when combined with the other charges, it does appear to place the accused in the middle of the activities of a gang war that is real and currently ongoing and that creates incredible danger for the public. My preceding recitation of the tit-for-tat shootings and murders provides plain and obvious evidence of the existence of that danger in the community, and that danger, even if not fully supported to this point by the particular evidence that supports the conspiracy charge, exacerbates the risks to the public and calls for extra caution to be exercised.

[41] The cousin, Duc Van Nguyen, claims to have no knowledge of Mr. Tran’s earlier charges, but I find that is just simply not believable. Moreover, while Crown counsel correctly concedes that the mere fact that a proposed surety has previously been convicted of a criminal offence does not necessarily serve to disqualify the person from serving as a surety for another accused offender, the existence of prior crimes of dishonesty on the part of the mother-in-law, even if 20 years ago, shows that she has been willingly engaged in crimes of dishonesty in her past. It necessarily calls into question the extent to which the court can rely upon her as a person who will exercise control over the accused, but more importantly, believe her when she claims that she will have first regard to her obligation to this court in controlling the accused and will not hesitate to contact the police should he violate any of the terms upon which it was proposed that he would be released. Equally importantly, given the care that should be put into the swearing of affidavits, that error in preparing the mother’s affidavit, if an error it was rather than an attempt to ignore her past history, causes me to doubt the ability of the mother as the lynchpin of the present proposed plan of release to deliver in terms that this court can accept.

[42] I appreciate that this plan of release may be the best one that can realistically be put together for the accused at the present time, and my remarks as to its suitability or adequacy are not generally meant to reflect negatively upon the proposed sureties, or others who may have offered their voluntary assistance, in spite of these deficiencies, but, in my view, in all of the circumstances of this case, it just does not “show cause” justifying the release of the accused on the secondary ground.

[43] In addition, while it is perhaps unnecessary to draw any final conclusions in this regard, I must say that I am also of the opinion that the detention of the accused is justified on the tertiary ground outlined in s. 515(10)(c) of the Criminal Code, in that his detention is necessary to “maintain confidence in the administration of justice.” In this regard, I note that: (1) the Crown’s case against the accused appears to be very strong, for the most part, even if the ultimate strength of the conspiracy to murder charge remains uncertain; (2) the crimes allegedly committed by the accused are very serious; (3) the circumstances surrounding the commission of the alleged offences include the accused’s apparent possession of a firearm and ammunition; and (4) if convicted, the accused is liable to be sentenced to a very lengthy term of imprisonment. See: R. v. Whervin, [2006] O.J. No. 443 (S.C.J.); R. v. Baba, [2006] O.J. No. 5387 (C.J.); R. v. Wilson, [2009] O.J. No. 3644 (S.C.J.); R. v. David, [2006] O.J. No. 3833 (S.C.J.); R. v. Santapanga, Reasons for Sentence, given by McArthur J. on December 17, 2013.

Conclusion

[44] For these reasons, the application is dismissed. Hung Binh Tran shall remain in detention for the time being.

[45] As time passes, and as more is learned about the case, if it becomes apparent that the strength of the Crown’s case changes significantly, such significant changes in the circumstances may permit a further bail review application pursuant to s. 520(8) of the Criminal Code. But, for the time being, the accused will remain in detention for the protection of the public based on the secondary ground.

Michael G. Quigley J.

Released: July 23, 2014

COURT FILE NO.: CR-14-30000159-00BR

DATE: 20140723

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

HUNG BINH TRAN

Defendant/Applicant

REASONS FOR RULING

Re: Application for Judicial Interim Release

Michael G. Quigley J.

Released: July 23, 2014

Her Majesty the Queen v. Hung Binh Tran, 2014 ONSC 4395

Case Summary

Introduction

The Governing Legal Principles

The Personal Circumstances of the Accused

The Release Plan

Analysis and Conclusions

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 3