R. v. Nguyen

2007 BCSC 897 R. v. Nguyen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nguyen, 2007 BCSC 897 Date: 20070621 Docket: 24248 Registry: Vancouver Between: Regina Respondent And: Hieu Thanh Nguyen Applicant Restriction on publication: Pursuant to subsection 517 (1) and 517(2) of the Criminal Code, there is a ban on publishing the evidence taken, the information given, the representations made and these reasons for decision, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. This publication ban expired on July 25, 2008. Before: The Honourable Mr. Justice Warren Reasons for Judgment Counsel for the Respondent: B. McCabe Counsel for the Applicant: I. Carter Date and Place of Trial/Hearing: June 5 and 7, 2007 Vancouver, B.C. Introduction [1] This is an application under s. 520 for bail review. The accused's counsel argued that the Learned Provincial Court Judge erred in principle by placing too much emphasis on the circumstances surrounding the offence, by mischaracterizing the strength of the Crown's case and, in particular, the accused's alleged role in the kidnapping. Further, the applicant submitted that Rideout P.C.J. failed to articulate the "constellation of exceptional factors" that must exist in order for an accused to be denied bail on the tertiary grounds: see R. v. Bhullar, 2005 BCCA 409 at ¶ 66.

Counsel also submitted that in light of the evidence before the hearing judge and the fresh evidence adduced on the review, the court can conclude that the accused's detention is not necessary in order to maintain confidence in the administration of justice and he may therefore be released on strict conditions pending his trial. [2] The applicant relies particularly upon the following decisions: R. v. Adiwal, 2003 BCSC 740; Bhullar; R. v. Blind (1999), 180 Sask. R. 145, 139 C.C.C. (3d) 87 (C.A.); R. v. Hall, [2002] 3 S.C.R. 309, 217 D.L.R. (4th) 536, 2002 SCC 64; R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.); R. v. Nguyen (1997), 119 C.C.C. (3d) 269, 97 B.C.A.C. 86; R. v. Patko 2003 BCCA 262; and R. v. Salim, 2007 BCCA 44. [3] The Crown strongly opposes the release of Mr. Nguyen. It submitted there was no error in law or principle by the hearing judge and the continued detention was and is necessary under the tertiary grounds. It relies particularly on Hall. [4] On May 7, 2006, two young children aged 8 and 7 were taken from their home. Three Caucasian males forced entry, demanded money from the occupants and removed the children, placing them in the trunk of their mother's Lincoln vehicle, then drove off. Shortly after, the children managed to get out of the trunk of the car, which had been parked in a secure parking area in the basement of the apartment building

where the accused was a tenant. The accused was arrested a short time later as he drove the Lincoln vehicle from the parking area. [5] At the bail hearing held July 10 and 21, 2006, the Crown had sought the detention of Mr. Nguyen only on the tertiary grounds under s. 515(10)(c) of the Criminal Code. It argued that his detention was both advisable and necessary in order to maintain public confidence in the administration of justice. On July 28th, Rideout P.C.J. ordered Mr. Nguyen detained on the tertiary grounds. His reasons are lengthy and well considered. [6] I understand that the preliminary hearing on this matter is set for later in July 2007 and accordingly Mr. Nguyen will have been detained and in custody since May 7, 2006. Applicant's Submissions [7] The nature of the review and the role of the reviewing judge are compendiously set out in the Reasons for Judgment of Romilly J. in Adiwal. Romilly J. considered the bail review process to be a hybrid between a de novo hearing and an appeal. The reviewing court may consider both the record as it would on an appeal as well as receive any additional evidence or exhibits as may be tendered. [8] It is incumbent upon an applicant to show cause why the original order ought to be vacated, by establishing an error in law or in principle or establishing that by reason of circumstances that have changed, it would be unjust not to

order the release: see R. v. Hill, [1973] 5 W.W.R. 382 (B.C.S.C.) and R. v. DiMatteo (1981), 60 C.C.C. (2d) 262 (B.C.C.A.). Romilly J. referred to the decision in R. v. Wilson (1997), 160 Sask. R. 47, [1998] 3 W.W.R. 56 (Q.B.), which set out the principles applicable to an application of s. 520 of the Criminal Code. He stated that the onus is on the applicant to establish on a balance of probabilities that the previous order should be vacated or varied. While the review is broader than an appeal and the justice has an independent discretion, deference and due consideration must be given to the decision under review. The reviewing judge is not entitled to simply substitute his or her discretion for that of the original judge. Rather, it is necessary to determine whether the judge erred in law or in principle or whether it would be unjust not to order the release of the accused. [9] Romilly J. quoted the reasons of Salhany J. in R. v. McCue (1998), 130 C.C.C. (3d) 90 (Ont. Gen. Div.) where, after noting the usual circumstances under which bail is set or denied originally, Salhany J. stated: in my view it is incumbent upon the superior court to ensure that an accused who can demonstrate good reason for his release should be given the opportunity to present that evidence before a reviewing judge. However, to avoid Judge shopping in repeated applications to the Superior Court,

subsection (8) restricts applications to every 30 days 'except with a leave of a judge'. In my view, leave should not be granted unless the decision of the reviewing judge was clearly wrong in law or there have been intervening events which require the granting of leave 'in the interest of justice'. [10] Section 515(10)(c) reads: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. [11] Mr. Carter submitted that the Learned Provincial Court Judge erred in principle by overemphasizing the circumstances surrounding the offence and mischaracterizing the strength of the Crown's case. Counsel submitted that Rideout P.C.J. failed to articulate the constellation of exceptional factors that must exist in order for an accused to be denied bail on the tertiary grounds. Further, the applicant's counsel submitted that having regard to all of the circumstances, including the apparent

strength of the Crown's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment, the applicant's detention is not necessary in order to maintain confidence in the administration of justice. [12] Mr. Carter referred me to the decision of the Supreme Court of Canada in Hall where McLachlin C.J.C. stated that the hearing judge must be satisfied that detention is necessary not just to any goal but to maintain confidence in the administration of justice. Most importantly, the judge should make this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his reasons for denying bail: while the judge must look at all of the circumstances, he must focus particularly on the factors that Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. [13] Just what is the view of a reasonable member of the community has been considered by a number of cases. Counsel referred me to Bhullar, where Rowles J.A. stated that the analysis must be made from the perspective of "a reasonable and informed member of the public".

McEachern C.J.B.C. in Nguygen (considered with approval by the Supreme Court of Canada in Hall) wrote at ¶ 18: The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause 'ordinary reasonable, fair-minded members of society' (per O'Grady at 4 [p.139 C.C.C.]), or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case (per R. v. K.(K.) at 54), to believe that detention is necessary to maintain public confidence in the administration of justice. [14] As the applicant's counsel submitted, Rowles J.A. noted that denial of bail on the tertiary grounds will be exceptional. In Hall, McLachlin C.J.C. noted that public confidence is essential to the proper functioning of the bail system and the justice system as a whole and to sustain the rule of law as a core value of our society, it is necessary to maintain public respect for the law and the courts. However, McLachlin C.J.C. cited from R. v. MacDougal (1999), 138 C.C.C. (3d) 38 (B.C.C.A.), where Hall J.A. stated: Courts must be careful not to pander to public opinion or to take account of only the overly excitable, but I believe that to fail to have regard to the provisions of s. 515(10)(c) in the relatively rare cases where it can be properly be invoked would tend to work against maintaining broad public

confidence in the way justice is administered in this country. [15] The applicant's counsel submitted that the hearing judge was in error in concluding that the case fell within the "extraordinary" category of cases where bail has been denied on tertiary grounds, that is, as falling within cases in which the facts have been so horrific and the fear in the community so palpable that the administration of justice would fall into disrepute if the accused were released. [16] Counsel submitted that the hearing judge appears to have focused on the circumstances surrounding the kidnapping as key factors in determining whether the accused ought to be detained, and he points in particular to the fact that the hearing judge noted that the kidnapping was planned and deliberate, a proposition supported by the note found on the applicant's coffee table; that a handgun was brandished by one of the men at the house where the children were kidnapped; that the two children were confined in the trunk of the Lincoln, which must have created terror in their minds; and that the children were used as bait to induce a ransom from the mother of the two children. [17] Counsel submitted that although kidnapping of two children is indeed a serious crime, "it must be kept in mind that the children in this case were detained for only several hours and were not physically assaulted. The circumstances of the

kidnapping in this case are a far cry from the facts that the Supreme Court of Canada was faced with in Hall." In Hall, the media attention caused significant public concern whereas in the case at bar, at least some of the media's attention has been focused on comments made by the children's father that the police had arrested the wrong person. [18] Further, counsel submitted that the circumstances of this case are not as egregious as those in Adiwal, also a kidnapping case, where the accused and co-accused beat the complainant, confined him to a garage compound, bound him with rope and left him for a lengthy period of time while seriously injured. A gun and ammunition was subsequently found in the accused's house along with a bloodstained shirt. Romilly J. reversed the provincial court judge and remarked that placing undue weight on the circumstances of the offence would improperly allow s. 515(10) to become a "means to start punishment before conviction". [19] Counsel argued that the circumstances of the offence cannot be separated from his client's role in the offence and the strength of the Crown's case: see LaFramboise. Further, he submitted that any consideration of the circumstances of the offence must also take into consideration the antecedents and personal circumstances of his client. [20] Mr. Nguyen is 25 years of age and one of eight children born in Vietnam. He

lived with his sister until he was 21 and he had some difficulty in school, in part due to a very significant speech impediment. He began working in agriculture at 15 and then delivered newspapers for the two years prior to his arrest. He has the support of his family and in particular his sister and brother-in-law who are prepared to have him live with them when he is released. As noted by the hearing judge, the applicant has only a minor and unrelated criminal record. [21] His counsel submitted that if the public were fully informed of the circumstances of the case, including that the accused has only a minor criminal record and the support of family members, that he provided an exculpatory statement to the police and that there was a real issue as to whether he had knowledge of the kidnapping or was in fact merely a dupe, then his client's detention would not be necessary on the tertiary grounds in order to maintain confidence in the administration of justice. [22] Mr. Nguyen's counsel also argued that the Crown's case is not strong and there is little evidence linking Mr. Nguyen to the more aggravating aspects of the offence. For example, there is no evidence that Mr. Nguyen was one of the men who entered the Burnaby residence and took the two children, nor there is any evidence that he had any knowledge that one of the men was carrying a gun, a fact which the hearing judge

found to be an aggravating circumstance in the case. [23] Further, from the materials, it does not appear that Mr. Nguyen was present when the three individuals who took the children arrived at the apartment building. Although the green Honda registered to Mr. Nguyen's brother entered the secure area of garage shortly after the Lincoln automobile, counsel submitted there is no evidence that a fourth person, namely Mr. Nguyen, was present when this happened or was assisting at this point in time. If there is no evidence that Mr. Nguyen actually transported the children against their will between two locations, he can only be convicted of kidnapping as a party to the offence, but the Crown must prove that the applicant not only assisted in the kidnapping but also that he intended to assist in the kidnapping, knowing that it was a kidnapping: see R. v. Q.V.T.M.L. (2003), 177 B.C.A.C. 1, 172 C.C.C. (3d) 44, 2003 BCCA 48. [24] Counsel argued that while there is evidence that the applicant assisted in the kidnapping, in that his vehicle and apartment building were used to help carry out the offence, the critical issue at trial would be whether he knew he was assisting in a kidnapping. It is his submission that the Crown's case on this critical element of the offence is not particularly strong, contrary to the conclusion of the learned hearing judge. [25] Rideout P.C.J. pointed to the

fact that Mr. Nguyen was found driving the Lincoln from which the children had escaped; that the Lincoln had been parked in the building at which he was a resident; that Mr. Nguyen had access to the underground garage through an unique pass key system; and that he was found to be in possession of the cell phone taken from the mother, which was used to make the ransom calls. Rideout P.C.J. concluded: "the circumstantial timeline from the time that three men entered the residence until the accused is apprehended link the accused to the criminal activity". [26] Mr. Nguyen's counsel submitted that there is no evidence linking Mr. Nguyen directly to the removal of the children from their home and the first piece of evidence that would link him to the kidnapping, in terms of the "time line", is the arrival of the Lincoln and the Honda motor vehicles at the apartment building using his swipe card. However, this evidence must be considered in light of the fact that Mr. Nguyen was not seen in either of the two vehicles as they entered the parking area and he is only clearly seen on the video cameras about ten minutes before he went to the parking area and drove off in the Lincoln. [27] The Crown relied upon certain facts to support the proposition that the applicant was knowingly involved in the kidnapping. Although the Crown and the hearing judge noted that the men who carried out the

kidnapping had access to Mr. Nguyen's swipe card and to his vehicles; that the children were taken to the garage of Mr. Nguyen's building; that Mr. Nguyen got into the same vehicle in which the children had been held and drove it out of the garage; that at the time of his arrest Mr. Nguyen was carrying gloves and the very cell phone used to make the ransom calls; and a subsequent search of Mr. Nguyen's residence uncovered a note which sets out the steps of a proposed plan, Mr. Carter submitted that these facts must be weighed against the fact that Mr. Nguyen provided an exculpatory statement to the police immediately upon request. In essence, Mr. Nguyen advised the police that he was helping some people but not knowingly in fact assisting in a kidnapping. [28] Counsel argued that the fact that the men involved in the kidnapping may already have had access to the swipe card and to the Honda motor vehicle is not inconsistent with Mr. Nguyen saying that they later drove him to the apartment building so that he could drive the vehicle in exchange for money. Mr. Nguyen's statement or explanation is consistent with subsequent investigation by the police that showed that a taxi had been called to the area of Mr. Nguyen's apartment and that the security camera in the taxi showed one John Joseph Smith, an individual known to the police. Mr. Nguyen had told the police that it was a John

Smith who had offered to pay him $500 to drive the Lincoln vehicle. [29] Also, he noted that when the children were in the lobby with the people who helped to release them, they did not recognize Mr. Nguyen, who was also present in the lobby. The fact that Mr. Nguyen walked away and then returned is inconsistent with the actions of someone who is knowingly involved in the ongoing kidnapping of the children. It would have been foolhardy in the extreme for Mr. Nguyen, knowing of the kidnapping, to continue to drive the Lincoln from the garage when he knew that the children had been rescued and that the police were likely on their way. [30] With reference to the note found on the coffee table in his apartment, his counsel submitted that it is ambiguous. The note itself is not clear that steps were in place to kidnap children and in fact it is inconsistent with the evidence of the children's mother, who stated that when the three men entered the house, they were looking for a safe. The mother's evidence is consistent with a spur of the moment decision to take the children rather than some plan or deliberate step. Also, it was the mother's suggestion that the men take the Lincoln automobile. This is a strong indication that this was not part of a predetermined plan. Finally, the note is only linked to Mr. Nguyen by virtue of the fact that it was found in his apartment. Mr. Carter

submitted that for these reasons the Crown's case against his client is not overwhelming. [31] As for the nature of the offence and the potential sentence, Mr. Carter concedes that kidnapping is a serious offence and, if convicted, an offender could receive a lengthy sentence. However, even for very grave offences carrying lengthy prison sentences such as murder, individuals have been released pending trial in many cases. In Blind, Jackson J.A. noted that a hearing judge must not become so focused on the gravity of the offence and the strength of the Crown's case as to overlook the fact that there are no categories of offences for which bail is not a possibility. Jackson J. A. wrote at ¶ 15: There are also many cases where the strength of the Crown's case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such. Giving undue weight to this factor becomes a means to start punishment before conviction. [32] Mr. Carter submitted that there must be the "constellation of exceptional factors above and beyond the nature of the charge and the potential for a lengthy jail term of imprisonment" before bail will be denied under the tertiary grounds, and that those exceptional factors do not exist in this

case. Counsel submitted that Mr. Nguyen may be released on a recognizance with one surety in the amount of $5,000 under strict conditions and that this will maintain confidence in the administration of justice. Respondent's Submissions [33] The Crown vigorously disagreed with the applicant's submission that the Learned Provincial Court Judge overemphasized the circumstances. Mr. McCabe submitted that on the facts available to the Learned Provincial Court Judge, the Crown had presented a very strong circumstantial case and this Court ought not to conclude that the experienced hearing judge overemphasized the circumstances which were all before him. The Crown says that the applicant has not demonstrated there was any error in principle or in law. Rather, Rideout P.C.J. carefully applied both the facts and the law and there was no reversible error. [34] With reference to the "dupe defence", Mr. McCabe submitted that even if Mr. Nguyen were paid $500 only to drive the car, the facts show that the car had just been used to carry the two victims to his apartment building; the kidnappers used Mr. Nguyen's security pass card to enter the secured area and park in his designated spot; and the Lincoln vehicle was followed into the garage by a vehicle owned by his brother, to which only Mr. Nguyen had access. Further, it was Mr. Nguyen who was found in the Lincoln with the very phone used

to make the ransom, and he was in possession of latex gloves. Finally, there is another link tying him to the kidnapping: the two copies of a plan which clearly anticipate something, found in his apartment. [35] Mr. McCabe submitted that there was no error in law or principle. He says there is a strong case presented by the Crown linking Mr. Nguyen to a very serious and grave offence involving the kidnapping of two young children for ransom of $200,000. The children were locked in the trunk of a vehicle and transported to the apartment building and only gained their release by fluke. This was a planned and deliberate effort to get a significant amount of money using the children, along with the likelihood of serious physical and mental harm to the children. Finally, there is a potential for a very lengthy period of incarceration if Mr. Nguyen is found guilty. [36] The Crown argued that all of these facts bring this case within the exceptional circumstances justifying the detention on the tertiary grounds. Mr. McCabe argued that public confidence in the administration of justice would be weakened by the accused's release. [37] The Crown relies particularly upon the decision of the Supreme Court of Canada in Hall, which considered both the constitutionality and the justification for detention in custody under s. 515(10)(c). As McLachlin C.J.C. noted, starting at ¶ 30: Bail denial

to maintain confidence in the administration of justice is not a mere 'catch-all' for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts may be relevant to all three heads. For example, an accused's implication in a terrorist ring or organized drug trafficking might be relevant to whether he is likely to appear at trial, whether he is likely to commit further offences or interfere with the administration of justice, and whether his detention is necessary to maintain confidence in the justice system. But that does not negate the distinctiveness of the three grounds. I conclude that a provision that allows bail to be denied on the basis that the accused's detention is required to maintain confidence in the administration of justice is neither superfluous nor unjustified. It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public's confidence if the circumstances of the case so warrant. Without public confidence, the bail system and the justice system generally stand compromised. While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. Section 515(10)(c) sets out specific factors which

delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public's confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c) -- the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment. Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose. [38] The Crown submitted that there is nothing in the reasons of the hearing judge that show he made any error in principle or in the application of the law and therefore the application ought to be dismissed. The Circumstances [39] Three Caucasian males forced entry into a Burnaby house and after a search of the premises for a safe took the children. This occurred at approximately 6:30 p.m. on May 7th and when

the three men left with the two children, they took the mother's Nokia cell phone and drove off in the mother's black Lincoln motor vehicle, having first placed the two children in the trunk. [40] Neighbours across the street from the children's home had telephoned 911 and the Burnaby RCMP arrived at approximately 6:36 p.m. [41] There is closed circuit television in the parking facilities of a garage at 13880 - 101 Avenue, Surrey, British Columbia. At approximately 6:57 p.m., the black Lincoln motor vehicle and a green Honda entered the underground parking garage. In order to gain access to the underground parking facility, one must use an entry card. The black Lincoln motor vehicle parked in a space designated for apartment #1207-13880 - 101 Avenue, Surrey, British Columbia, an apartment rented by the accused. [42] At approximately 7:04 p.m., the green Honda vehicle left the underground parking facility, driven by a Caucasian male, and returned approximately six minutes later, at 7:10 p.m. At approximately 7:34 p.m, the Honda motor vehicle again exited the underground parking facility and returned at 7:51 p.m. Approximately two minutes later, two residents of the apartment entered the secured parking area and parked across from the black Lincoln. The residents noticed that the trunk of the Lincoln was partly open and that there were children in the trunk. They went to help the

children and took them up to the lobby of the building, telephoning 911 in the meantime. The RCMP attended, and at approximately 8:00 p.m., a Surrey RCMP officer observed the black Lincoln with the same license plate as that owned by the parents of the two children outside the building. [43] Constable O'Connell observed an Asian male as the lone occupant and driver of the vehicle. He approached the vehicle and, when the driver failed to open on request, Constable O'Connell broke the driver's window and detained the Asian male who identified himself as this accused, Hieu Thanh Nguyen. The RCMP officer searched Mr. Nguyen incidental to his arrest and found the following items in his possession: one Sony Ericsson cell phone in his right pant pocket; one remote vehicle key to the Honda vehicle in a pant pocket; one Nokia cell phone in a pant pocket; and two white latex gloves in another pant pocket. A security access card No. 6E04592 was located in the black Lincoln vehicle. The rental information shows that this card is registered to the accused's apartment # 1207-13880 - 101 Avenue, Surrey, B.C. [44] When asked for an explanation why he was driving the Lincoln vehicle, Mr. Nguyen stated that a male, John Smith, had dropped him off in Surrey to pick up the vehicle and that he was to be paid $500 for his services. Mr. Nguyen stated that he had met John Smith at Alpha Billiards in

Burnaby and had been driven to the apartment building at 13880 - 101 Avenue, Surrey, in order to pick up the Lincoln from the underground parking area. [45] The green Honda motor vehicle, Washington license plate No. 728J0I, is registered in the name of Mr. Nguyen's brother. [46] Further police inquiry of the closed circuit television for the lobby area of 13880 - 101 Avenue showed that from approximately 7:57 p.m to 8:00 p.m., a male wearing a blue baseball cap with a white logo on the front and a blue hoodie was visible. Two members of the strata council identified that individual as the tenant of #1207 - 13800 - 101A Avenue. [47] On May 8, 2006, Surrey RCMP executed a police warrant at #1207 - 13800 - 101 Avenue, Surrey, B.C., and seized certain items, including two pieces of paper with handwriting. One page reads: Proposal Step 1: Follow, take and bring back to base Step 2: The team should do as instructed & take actions if advise to. Step 3: Hold til full achievement is complete, should be no more than 3 business days and even shorter of time if actions has been as instructed. The second piece of paper reads: Proposal Step 1: Follow, take & bring back to base Step 2: Take actions if advise to. Step 3: Hold til full achievement, which should not more than 3 business days. Step 4: Achieved & let go, depends on how fast one will co-operate. Should not be more than 2 days if

actions has been made [48] The Nokia cell phone removed from the accused's pant pocket, number 604-506-1669, was the phone used by the kidnappers to contact the family and make ransom demands. [49] The accused Hieu Thanh Nguyen is a 25-year-old Vietnamese man who is a landed immigrant in Canada, having arrived here with his family when he was 12 years old. He has a minor criminal record. Conclusion [50] Both counsel agreed that the Reasons for Judgment of Romilly J. in Adiwal provide a helpful route map for a consideration of the role of the judge on applications such as this. As earlier noted, a reviewing judge is engaged in a hybrid process involving a hearing de novo and an appeal. The onus is on the applicant to show that the hearing judge made an error in law or in principle or that the circumstances have changed or that it would be unjust not to order the release: Hill. Further, an application under s. 520 of the Criminal Code is not, strictly speaking, an ordinary appeal, and while due consideration must be given to the original order of the hearing judge, the judge on review is entitled to exercise an independent discretion: R. v. Carrier (1979), 2 Man. R. (2d) 168, 51 C.C.C. (2d) 307 (C.A.). [51] As Romilly J. noted when summarizing from the reasons of Bayton J. in Wilson: · the onus is on the accused to bring such an application to establish on a balance of

probabilities why the detention order should be vacated; · if the accused fails to show cause, the application must be dismissed; · deference and due consideration must be given to the decision under review; · the reviewing judge is not entitled to simply substitute his or her own discretion for that of the original hearing judge; · the reviewing judge must determine whether the original hearing judge erred in law or in principle or whether it would be unjust not to order the release: Carrier; · even where fresh evidence is submitted, the hearing is not of the nature of a trial de novo and the reviewing judge must still determine whether the initial order was the result of an error in law or in principle: R. v. Hunter (1973), 24 C.R.N.S. 197 (Ont. Co. Ct.). [52] In his analysis, and after referring to the decision in Hall, Romilly J. noted that there are two important contexts to a consideration of the public's confidence in the administration of justice. First, and arguably foremost, is the understanding and respect for the presumption of innocence. Second, public confidence must be analyzed on the basis of informed, reasonable persons and not on the basis of gauging public opinions or in accord with a general public expectation that bail will be denied to all persons charged with serious offences. At ¶ 40 he stated: Given the importance of the presumption of innocence to our

justice system, public confidence in the administration of justice will in most circumstances be maintained and enhanced by the pre-trial release of an accused who is not required to be detained on the primary or secondary ground. Detention may be required on the tertiary ground in relatively rare cases: R. v. Hall, supra, at ¶ 27. [53] Romilly J. also noted that courts in this jurisdiction have frequently held that bail should not be routinely refused even where an accused is facing the most serious charges, including murder: see, for example, R. v. Gray, [1989] B.C.J. No. 2462 (Q.L.) (C.A.); R. v. Copeland, 2000 BCSC 493; R. v. Wilson (1998), 124 B.C.A.C. 266; R. v. Hadani (1999), 125 B.C.A.C. 155, 1999 BCCA 334; and Blind. [54] In the circumstances before him, Romilly J. concluded that the continued detention of Mr. Adiwal was not justified on the tertiary grounds and he ordered his release on strict conditions and with two sureties in the amount of $100,000 each. [55] As the Court of Appeal noted in Bhullar, the detention of an accused under this section must be considered having regard, in particular, to the four enumerated factors set out in the section. The court must be satisfied that detention is not only advisable but necessary, and necessary not just to any goal but to the goal of maintaining confidence in the administration of justice. The analysis must be made from

the perspective of a reasonable and informed member of the public and with the consideration of all Charter values, including the presumption of innocence and the recognition of the importance of bail to the proper administration of justice. It was Rowles J.A. who, in considering this section, coined the expression "a constellation of exceptional factors" being required in order to justify detention under s. 515(10)(c). [56] I have thoroughly read the reasons for detention set out in the decision of Rideout P.C.J. and I can find no error in principle or in law. Rideout P.C.J. carefully considered the full evidence and argument presented to him and particularly noted the compelling dissent of Iacobucci J. in Hall. He, as do I, considered that the Crown had presented a strong prima facie case linking Mr. Nguyen to the kidnapping and confinement of these two young children. Although Rideout P.C.J. mentioned that a gun was apparently used in relation to the kidnapping and that amounted to "a significant concern", I do not consider that this diverted him from the principles which he earlier referred to. Rideout P.C.J. noted at ¶ 49: While it would appear that the accused was not one of the three men who entered the Imperial Street address and kidnapped the two children, all of the circumstances surrounding the commission of the alleged offences, would, at this stage, connect the

accused as a party to all or part of the kidnapping. In any consideration of the circumstances, one would also take into account that the accused was a relatively young man who has faced challenges in life and has only a minimum unrelated criminal record. Further, that he enjoys the support of his family in Vancouver and that they would step forward to be responsible for the accused such that the confidence of the public at large in relation to the maintenance of the administration of justice would be protected. [57] Rideout P.C.J. then considered the attention that the media had given to this matter and to the reasonable conclusion that the public at large would be aware of the circumstances of the offence and mindful of the rights of the accused, but nevertheless concluded that public confidence in the administration of justice would be harmed if Mr. Nguyen were released. I agree with that conclusion. [58] In my view, on the facts put before both me and the hearing judge, the Crown has a very strong circumstantial case linking Mr. Nguyen to the planning and execution of this very serious offence and, if convicted, and notwithstanding his relatively minor and unrelated criminal record, Mr. Nguyen faces the potential for a very lengthy term of imprisonment. In my view, after considering all of the circumstances, and particularly the four factors Parliament has specified in s. 515(10)(c), I am satisfied that a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The applicant has not met the burden upon him and the application is dismissed. "The Honourable Mr. Justice Warren"