ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-00000146-00BR
DATE: 20140728
B E T W E E N:
HER MAJESTY THE QUEEN
George Lennox, for the Crown/ Applicant
Applicant
- and -
RITCHIE NGUYEN
John Christie, for the Defendant/Respondent
Defendant/Respondent
HEARD: July 10, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Section 521 Review of Order of Judicial Interim Release
Introduction
[1] The accused, Ritchie Nguyen, is charged with trafficking in firearms for the benefit of a criminal organization contrary to section 467.12 of the Criminal Code. He is also charged with two counts of trafficking in firearms simpliciter, and 11 counts of possession of firearms for the purposes of trafficking. He was arrested on May 28, 2014, at the same time as some 50 other individuals. Those arrests all arise out of the major Project Battery and Project RX investigations conducted in concert by various branches of the Toronto Police Service (TPS) involving and focused on the violent rivalry between five street gangs in the city of Toronto. There is a review of some of that history that can be found in my reasons for ruling on the application for judicial interim release brought by the accused in R. v. Hung Binh Tran and reported at 2014 ONSC 4395.
[2] On June 18, 2014, Mr. Nguyen appeared before Justice of the Peace Longe of the Ontario Court of Justice. The offences with which he is charged are reverse onus offences, but the justice said that he was “reasonably confident” that the accused could be released and that the proposed plan of the sureties would address the safety of the public, even though he also acknowledged that the plan might not be 100% in the best interests of the court. He granted an order of judicial interim release to Mr. Nguyen with two sureties, his mother, Thi B Nguyen, in the amount of $60,000 and his cousin, Quy Tam Nhan, in the amount of $10,000.
[3] On this application brought under section 521 of the Code, the Crown seeks an order vacating that judicial interim release order and substituting instead an order of detention. The Crown contends that a significant factual error in the materials before the justice of the peace now undermines the factual basis for the bail order that was made. Further, the Crown argues that reasons given by the justice of the peace must be set aside because they do not meet the requirements established by R. v. Sheppard[^1] in order to permit meaningful appellate review.
[4] I granted leave to the Crown under section 521(8)(c) of the Code to introduce new evidence on this hearing in order to clarify the mistaken factual understanding that was present before the justice of the peace. This gave rise to the introduction of two new pieces of evidence. They are discussed further below.
[5] Further, I reluctantly reached the conclusion that I could not tell exactly why the justice had reached the decision he did. As such his reasons did not meet the standard established in Sheppard. In light of that conclusion, while I still take account of all that transpired at the earlier hearing, including the evidence as revealed by the transcripts and as supplemented on this hearing, this hearing proceeds as a bail hearing de novo.
[6] Nonetheless, for the reasons that follow, I am satisfied that the accused can continue to be released from custody on the strict terms that have been imposed, subject to the supervision of his sureties. The application is dismissed.
Background facts
[7] These charges arise out of the investigations that were conducted in concert by the TPS Homicide Squad, Organized Crime Enforcement-Major Projects Section, the Integrated Guns and Gangs Task Force, Organized Crime Enforcement-Asian Organized Crime Task Force and the Organized Crime Enforcement-Drug Squad Major Projects in the two investigations known as Project Battery and Project RX.
[8] The investigation involved a violent rivalry among five street gangs in the city of Toronto. That ongoing rivalry between the Asian Assassinz, Project Originals, Chin Pac, Sick Thugz, and Young Regent Niggas has sparked numerous violent shootings throughout the city. Some of the shootings have resulted in murders. They have taken place in busy areas with high pedestrian traffic. They have occurred in residential areas on people’s front doorsteps, in restaurants and in shopping malls. Individuals have been shot execution style as they came to the front doors of their homes as the tit-for-tat violence has raged on.
[9] In simple terms, while the accused is or until recently was a member of the Canadian Armed Forces, he is also alleged in this matter to be a supplier of illegal firearms to one of the families engaged in that gang warfare.
[10] Mr. Nguyen acquired a licence to acquire and possess non-restricted and restricted firearms in Canada in 2009. Shortly after acquiring that licence, he purchased a Heckler & Koch, Mark 23 restricted handgun.
[11] He made no further firearm purchases for three years, but in early September 2012, Mr. Nguyen made purchases of 10 restricted handguns and a shotgun in two separate transactions within a very short space of time. The first purchase was of four (4) Tokarev TT 33 restricted handguns. He also purchased four (4) Glock 22 RTF2 restricted handguns. Then, in another purchase made soon after, he purchased two (2) Norinco 1911 restricted handguns. He also purchased a 12-gauge shotgun.
[12] While it took some time, it is not surprising that those purchases triggered the interest and concern of the Firearms Enforcement Unit (FEU). A year later, on September 17, 2013, TPS Officer Newton and other members of the FEU attended the address of 225 Chartland Blvd., in Toronto, in order to conduct a compliance check. That was a location where Mr. Nguyen had a room that was made available to him by the family of a friend.
[13] However, Mr. Nguyen was not present when the FEU officers arrived. There was an elderly woman there, but she would not permit them to have access, even though she acknowledged knowing the accused when his picture was shown to her. The FEU officers later learned from Firearms Analyst Bonnie-Jean Skor that Mr. Nguyen was a member of the Canadian Armed Forces, and that he was stationed at that time in Alberta.
[14] Six days later, on September 23, 2013, Officer Newton contacted a phone number that he received from the elderly woman on September 17. The person he spoke to was a male named Nhat Hong Trinh. He confirmed to the officer that he was the owner of 225 Chartland Blvd. and the son-in-law of the elderly woman who Officer Newton had met the prior week. He was aware that Officer Newton had been to the house at 225 Chartland Blvd. on September 17.
[15] Mr. Trinh confirmed that he knew Ritchie Nguyen. He told the officers that Mr. Ritchie Nguyen was a friend of his son, and that both of them were stationed in Western Canada with the Canadian Armed Forces. Mr. Trinh indicated that he permits Mr. Nguyen to store his belongings in one of the upstairs rooms at the house on Chartland Blvd., but he also confirmed that the accused does not pay rent.
[16] Officer Newton’s notes record that Mr. Trinh told Officer Newton that he would consent to the officers going into the room to check to see that Ritchie Nguyen was complying with Canadian firearms storage laws. He said he would make arrangements for the officers to be provided with access.
[17] Mr. Trinh arranged for his mother-in-law to again meet Officers Newton and Jeanty at the residence. She would permit them to have access. When they arrived, P.C. Newton records in his notes that he showed her his badge and that she escorted them upstairs and permitted the officers to enter the room that was associated to the accused.
[18] Once inside that room, the police recovered one handgun (the Heckler & Koch) and three long guns, along with multiple boxes of unrelated ammunition. Those four firearms, the three long guns and the handgun, were on the floor in tote bags. Contrary to Canadian law, they were not locked or otherwise secured. The police seized those four firearms, as well as a black leather holster. Importantly, no other firearms were located. None of the other 11 handguns that Mr. Nguyen purchased earlier in September were found in that room.
[19] At this review, I was told that the facts relating to the missing firearms were miscommunicated to the justice of the peace at the original bail review. The Crown Attorney at that hearing mistakenly told the justice that just after the FEU officers attended at 225 Chartland Blvd. for the second time on September 23, 2013, that Mr. Nguyen had contacted the TPS on his own, without prompting, and at that time reported that the firearms that he had stored in his room at 225 Chartland Blvd. had been stolen.
[20] So at the initial bail hearing, the justice heard that Mr. Nguyen had called police to report that some of his guns had been stolen. I heard that in the statements to that effect made by his counsel in submissions, but those were plainly not evidence before me. There were the statements made by Crown counsel at the initial bail hearing as reflected in the transcript of the original hearing. The Toronto police occurrence report referred to below regarding the possible break and enter at 225 Chartland Blvd. on Monday, September 23, refers to Mr. Nguyen as a “reportee.” Nonetheless, at the original hearing it was claimed that the police had left no indication in his room that they had been there, entered the room or that they had seized items. They left no indication they were actually police officers and left no names or telephone numbers to call. Mr. Nguyen claims that when he tried to report some of the firearms stolen, he could not get through to the police, and did not receive any reply phone calls.
[21] In a somewhat bizarre development, however, Mr. Trinh, the owner, made a call reporting on an alleged break and enter in that room at the Chartland Blvd. house. This is evidenced by a police occurrence report ID No. 513202 that was made on September 23, 2013, the same date that the Firearms Enforcement Officer’s notes show that he and his colleague attended that address the second time, with consent, but the occurrence is not opened until 11:00 pm that evening. The irony of that occurrence report is that it seems pretty likely that it is Officers Newton and Jeanty who are the “unknown police officers” who are claimed in that report to have possibly “broken in”, rather than having been admitted by the owner as recorded in Officer Newton’s notes that were filed as further evidence before me.
[22] Even on the earlier version of events, however, it does appear that there is a significant disconnect between the list of firearms that Mr. Nguyen had purchased in September 2012, and the list of firearms that were reported missing from his room at 225 Chartland Blvd., as compared to the firearms found by the police, and seized from that location in September 2013.
[23] The FEU officers claim that they contacted Mr. Nguyen after seizing the firearms from the room at 225 Chartland Blvd. Officer Newton’s notes record that in response to their request, Mr. Nguyen provided them with a list of the firearms that were in his possession, and which he said were all stored properly in that room at 225 Chartland Blvd. in Toronto. The firearms he listed included the Heckler & Koch Mark 23 handgun; two .45 calibre handguns (different models of unknown makes); three Glock 22 handguns; one Remington rifle; and two shotguns (a Remington and a Fambar).
[24] Importantly, the list of firearms provided by the accused to the FEU officers did not match either the list of firearms that he had purchased earlier in September 2012, nor did it match the listing of the firearms that the police officers found and seized from his room earlier that day. While there was evidence that the lists did not match, there was no explicit evidence of the extent to which the two lists may have overlapped.
[25] Following these events, Mr. Nguyen’s licence to acquire restricted firearms was suspended but no other action was taken against him. As a result, Mr. Nguyen retained his licence to purchase non-restricted firearms, as well as ammunition.
[26] His next firearm purchase was on February 3, 2014. He bought a Dominion Arms-Grizzly 12-gauge shotgun, and a quantity of 9 mm ammunition. He was permitted under the licence he retained to purchase that shotgun. It is noteworthy, however, that the ammunition he allegedly purchased was not compatible with that or any other shotgun.
[27] Seven days later, the police contacted Mr. Nguyen on February 11, 2014. They requested that he turn over the shotgun that he had purchased. The application record shows that he advised the officers that called “let’s just say I don’t have it” and that it was “long gone.”
[28] Two weeks later, a wiretap authorization was granted in respect of Project Battery on February 24, 2014. That authorization was later renewed on April 15, 2014. As part of the Project Battery investigation, police obtained a general warrant on May 16, 2014, authorizing them to make entry into the residence of Peter Truong Dinh Nguyen. He is of no relation to this accused, but was one of the targets of Project Battery. He is claimed to be one of the main individuals involved in overseeing and directing the gang warfare and the targeted killings that are going on between the rival Asian gangs.
[29] When that general warrant was executed, no one was home, and the police made the entry look like a break and enter and completely upset Peter Troung Dinh Nguyen’s condominium, but they also seized and took with them a large quantity of drugs, including ketamine, cocaine, methamphetamine, heroin, BCP/TFMPP and marijuana. The quantities seized were typical of trafficking and far beyond amounts that would be possessed for personal consumption. They also seized three handguns, a shotgun, and a large quantity of ammunition.
[30] It is at this point that the Crown claims there is an association between this accused, Ritchie Nguyen, and Peter Truong Dinh Nguyen. That is because one of the handguns seized at Peter Truong Dinh Nguyen’s condominium on May 16, 2014 was a Glock .22 calibre handgun from which the serial number had been obscured. However, once the police used forensic techniques to restore the serial number, they determined that it was one of the Glock handguns that was originally purchased by Ritchie Nguyen in September 2012.
[31] The shotgun that was seized from Peter Truong Dinh Nguyen’s condominium had also had its serial number obscured. Once again, by applying forensic techniques, police were able to restore that serial number and determine that that long gun was the shotgun that Ritchie Nguyen purchased on February 3, 2014, and which he told the police was “long gone” one week later. No report was ever made by Mr. Nguyen that the shotgun had been stolen from him.
[32] Then, on May 18, 2014, Peter Truong Dinh Nguyen was intercepted in a text conversation with an unknown male. That conversation referenced “rich”. The context of the conversation led police to believe that “rich” was the respondent, Ritchie Nguyen, and that the other party was Peter Truong Dinh Nguyen. Nine days later, a further text conversation took place between Peter Nguyen’s phone and an incoming number 647-787-4197. The police believe that text exchange referred to a drug purchase between Peter Nguyen and this accused, Ritchie Nguyen. The accused was arrested the next day on May 28, 2014, along with some 50 other individuals in the large sting operation conducted by Toronto and Ontario police forces in Project Battery. At the time of his arrest, Mr. Ritchie Nguyen was in possession of a BlackBerry telephone that had that same number, 647-787-4197, that was associated with those texts.
[33] Of the restricted handguns that Ritchie Nguyen purchased, the police say that only the Heckler & Koch was ever recovered from his room. It was in an unsecured condition on the floor of the room in the Chartland Blvd. house. One Glock .22 was recovered along with other firearms, including the Dominion-Grizzly shotgun, but they were recovered in the condominium residence of Peter Truong Dinh Nguyen when the general warrant was executed. The other nine of the 11 firearms purchased in September 2012 by this accused, Mr. Ritchie Nguyen, remain unaccounted for.
Analysis
[34] At the initial bail hearing, the Crown argued that the accused ought to be detained on the secondary and tertiary grounds.
(i) The reasons of the justice of the peace:
[35] Relative to the secondary grounds, the justice stated that the accused’s mother, who was put forward as the principal surety, “seems to know very little about her son since high school.” Nevertheless, he said that was not surprising in our world today. His statements relative to the cousin who was to serve as the second surety, apart from the comment that he might have better knowledge of Mr. Ritchie Nguyen than the mother, was difficult to understand relative to their relevance to the suitability of the cousin as a surety.
[36] It appears the justice considered the third person put forward, a friend and business partner of Mrs. Nguyen, Mr. Ho, to be unacceptable as a surety at that time. The justice stated that Mr. Ho appeared to know very little of the accused and that he did not believe this person was in a position to have contact with and supervise the accused from the court’s perspective. Mr. Ho testified before me, and I will address his evidence later in these reasons, because I found the opposite to be the case.
[37] The justice of the peace then went on to state his reasons for releasing the accused. I repeat them in the succeeding paragraphs because their content goes to the question of (i) whether they are adequate under Sheppard, and (ii) whether they adequately explain the basis for the justice’s decision to release Mr. Ritchie Nguyen on judicial interim release.
With regards to the secondary ground and the safety of the public, there is always going to be some concerns in whether or not this person will commit another offence. However, this person does [not] have any matter before the Ontario courts, so it’s difficult to determine the likelihood of whether or not, but there’s always going to be a substantial likelihood the accused, if released, can commit another indictable offence. Those are always going to be possible - possibilities of the court must always take into consideration
With regards to tertiary grounds, readiness to participate in such a behavior, whether defensive or offensive, is extremely concerning and may well, in some circumstances, be sufficient to justify various serious consideration of denial of bail. On the tertiary grounds, however, having said that, the court could then conclude in light of the authorities, that bail could not be granted, that bail could not be granted [sic]. In this, in this instance, there is always the possibility, and the court must not necessarily rely on assumptions and hope, in some cases.
Where - reverse onus just mainly means that the accused must satisfy the justice on the balance of probabilities that in all of the circumstances his detention may not be justified. Even where there is a likelihood of re-offence, that is not an automatic bar of release, if a plan of supervision is in place with appropriate surety or sureties, so that the court may have reasonable confidence the plan can succeed.
However, the court does not diminish the very serious nature of the offences in which this individual is charged with, and the strength of the Crown’s case. I’m also very impressed with regards to the commit [sic] of the resolution with regards to the family members of the accused that is before this court today, spend the entire day regarding these matters.
In all of those circumstances, the court has reasonable confident [sic] the accused can be released and that the proposed plan will address both the safety of the public [sic]. Even though the plan may not be 100% in the best interests of this court, the court is satisfied that the mother and the cousin can satisfy this court with regards to supervision, and, and, and, and, and genuinely recognizes the importance of their role and their function, not as a mother or as a cousin, but also as a jailer to this individual.
In the both - the court believes in the best interests of the safety - and the safety of the public, and the integrity of the justice system, this person can be released based on those comments that the court have made.
[38] Respectfully, I find this explanation to be incomprehensible. I say that knowing that it came at the end of a very long and trying day for the justice of the peace with numerous intrusions from a variety of sources creating some difficult circumstances in his court. Nevertheless, I find it does not permit me to understand the foundation and reasons that caused the justice to grant bail to this accused at that time.
(ii) Secondary grounds:
[39] The justice of the peace appears to have accepted the mother and cousin as sureties but there was no explanation why. I can only discern from the questions asked that the justice must have been satisfied that since she claims to work from home, she would be able to supervise the accused at all times. But that is my presumption. Moreover, given their lack of connection for several years, there was no explanation provided about how the mother would enforce her supervision of the accused. There was no evidence before the justice about what would happen if the accused violated any of his release terms.
[40] However, I did have evidence addressing these issues. His principal surety, his mother, Thi B Nguyen, and her business partner and close friend Hoa Van Ho both testified, and I also had the affidavit of Mr. Nguyen’s cousin, Quang Van Lam. His mother testified through an interpreter. Mr. Lam is solely a financial and support surety, but he is willing to sign bail in the amount of $20,000, and has equity in his house to support that. Mr. Nguyen’s mother, Thi B Nguyen, gave evidence relative to his compliance with the terms of bail imposed on him a month ago, but also on their relationship, gaps that existed and why, and that she understands the seriousness of the charges he faces here.
[41] While Mr. Nguyen’s mother may have had periods around the time of her divorce where she may not have been aware of all of the actions of the accused, and while she was not aware of his purchases of firearms, that is understandable in the circumstances. After his parents divorced, the accused kept some distance from both of his parents, though he would speak to his mother on the phone and take her out to dinner from time to time. Now, however, she was able to explain how, between herself and her business partner, Hoa Van Ho, with whom she lives, they are able to have supervision of the accused at all times.
[42] Hoa Van Ho speaks English, and he testified how the accused has been totally compliant with his and the mother’s supervision over the past month. Indeed, they are employing the accused in their video surveillance camera installation business. He is earning minimum wage, and is accompanying Mr. Ho all day, six days a week, as he fulfills contracted installations. Mr. Nguyen has been learning the technical aspects of installation from him. I accept his evidence that Ritchie Nguyen has been fully compliant with the discipline that is being imposed upon him by the two of them.
[43] Based on their testimony before me, I am satisfied that both of the sureties have the ability to be and are now fully aware of the actions of the accused, and that in the course of the month since he was released on bail with them as sureties, he has shown himself to be amenable to the rules of his mother’s house and has displayed the military discipline one might expect of a former member of the Canadian military in adhering to their discipline and supervision over him. Indeed, I would note that at the conclusion of their testimony, Mr. Lennox conceded that he would no longer rely on the secondary ground as a basis to seek the reversal of the release order made by Justice of the Peace Longe, or that I detain the accused on that ground. Further, in addition to the recognizance of $70,000 without deposit pledged by the accused for his release, his mother has pledged $60,000 without deposit, and when that is combined with Quang Van Lam’s pledge of $20,000, that creates a total pledge of $150,000 without deposit to secure the release of this accused, a significant sum.
(iii) The tertiary grounds:
[44] That leaves the tertiary grounds. The Crown relied exclusively on that ground in support of the accused being taken into custody. Looking briefly at the reasons of the justice, again I find no cogent reasons provided by him for his apparent conclusion that the detention of the accused on the tertiary grounds was not justified. The sole basis upon which I can presume that the justice decided the tertiary ground claim against the Crown is the claimed existence of a “triable issue.” That is the claimed issue of whether there was a break-in to Mr. Ritchie Nguyen’s apartment with other individuals stealing his firearms, and whether there was a constitutional foundation for Officers Newton and Jeanty to be permitted access to that room. On that last point, even if Mr. Nguyen’s right to privacy in that room may be open to question,[^2] and even though I am reasonably certain that the application of the R. v. Grant[^3] analysis to those guns located in that room would likely result in their admission rather than their exclusion, those are presently suppositions.
[45] The justice found that “somebody broke into that room”, but the only evidence relative to that claim is the Toronto police occurrence report, which was not before the justice. That seems plainly to have been reporting relative to the actual entry by police officers into that room which they claim they did with the consent of the owner, Mr. Trinh. There was no other break-in of which I am aware. There is no other evidence of another break-in. Further, at least on its face and unexplained, the occurrence report of the break-in appears to postdate the time when the police officers claim to have called Mr. Ritchie Nguyen to ask him for the whereabouts of his firearms.
[46] There is, however, a significant and, as of yet, unexplained disconnect between the existence of that occurrence report and the statements made in the police officers’ notes. It makes little sense that Mr. Trinh would have reported a break-in at the room at his Chartland Blvd. property and yet have been the person who actually agreed to grant access to the officers to go into that property as they claim. Without further explanation, I do not see how it can simply be assumed that the version of events recorded in the police officers’ notes is correct and truthful, and that the substance of the occurrence report is a fabrication.
[47] Be that as it may, it also remains open whether and when Ritchie Nguyen reported to police, as the justice put it, that “the guns were stolen from his residence by someone,” and that he immediately notified the police with regards to what he discovered, based on what was communicated to him. The Crown says that the only communication to him was that made by the Toronto police, and perhaps also by Mr. Trinh.
[48] The justice also stated that there was no evidence that was before him to substantiate any allegation that (i) the police believed that the accused and Mr. Peter Truong Dinh Nguyen had knowledge and contact with each other, or (ii) that the accused transferred any guns to Mr. Peter Truong Dinh Nguyen in any way shape or form. Although it appears to me that both of those conclusions are open to question, it is equally plain that they are incapable of resolution at this time.
[49] First, the text messaging between Mr. Peter Truong Dinh Nguyen and the cell phone with the telephone number 647-787-4197 raises the circumstantial inference that that communication was between this accused and that individual given that the text message is known to have originated from that number. That was the number of the cell phone that was found to be in Mr. Ritchie Nguyen’s possession at the time of his arrest. The problem is that that is not the only reasonable inference that may arise from that evidence, and at this very early stage in the proceedings, well in advance of a preliminary inquiry being held, it strikes me as premature to insist that is the only inference that can be drawn.
[50] Second, while the inferences are available that the Glock handgun and the Dominion-Grizzly shotgun that were found at Peter Truong Dinh Nguyen’s condo at the time the general warrant was executed came from this accused, it is not plain to me that must necessarily follow, although it does appear likely. Finally, I note that the justice of the peace expressed no meaningful concern that some of the handguns purchased by this accused appear to have gone missing on his watch, or with the assumed fact that he has no idea of the whereabouts of those firearms. That fact alone, in the absence of other evidence that could reasonably establish that the firearms were stolen, at least raises an inference that the accused is involved in the delivery or transport of firearms, even if he is not actually selling them. He does not need to be selling them to be convicted of one or more of the offences he faces. Merely transporting is enough, if the requisite intent is present.
[51] However, I do not presently find the persuasive quality of this evidence to be overwhelming, unlike the Crown, who claims to have the evidentiary equivalent on this issue of the possession of the smoking gun itself. I agree these are reasonable inferences, and they may prove to be strong when tested, but at this stage other inferences cannot be ruled out, and I do not regard the Crown’s evidence against Mr. Nguyen to be overwhelming. It is not so strong at present as to amount to proof beyond a reasonable doubt, though I acknowledge it does not have to be.
[52] I am not satisfied that this is a circumstance where the accused ought to be detained on the tertiary ground. There is no question that the charges Mr. Nguyen faces are extremely serious. However, even though the charges in this matter are serious and are intertwined with a massive criminal organization investigation that has given rise to a panoply of charges against a host of ind