IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

United States v. Nguyen,

 

2012 BCSC 307

In the Matter of the Extradition Act, R.S. 1999, c. 18 as amened

 

Date: 20120229

Docket: 25992

Registry: Vancouver

Between:

The Attorney General of Canada on behalf of the
United States of America

Requesting State

And

Binh Nguyen, Danh Van Nguyen aka “Victor” and
Phoung Thao Tran aka “Lisa”

Persons Sought

Before: The Honourable Mr. Justice Blair

Reasons for Judgment

Counsel for the Requesting State:

J. Gibb-Carsley

Counsel for the Persons Sought, Binh Nguyen and Danh Van Nguyen aka “Victor”:

T. Grace

Place and Date of Hearing:

Vancouver, B.C.

February 17, 2012

Place and Date of Judgment:

Vancouver, B.C.

February 29, 2012


 

[1]             The accused, Binh Nguyen (“B. Nguyen”) and Danh Van Nguyen (“D. Nguyen”) apply for interim judicial release pending the hearing of the application brought on behalf of the United States of America that they be extradited to the United States to stand trial on offences relating to the operation of a sophisticated marihuana grow operation in Washington State between 2005 and 2007.

[2]             The two accused were arrested in the Lower Mainland of British Columbia on February 15, 2012, together with Phoung Thao Tran aka Lisa (“Tran”) on warrants for their arrest which followed the Minister of Justice’s granting of an Authority to Proceed pursuant to s. 15 of the Extradition Act, S.C. 1999, c. 18 authorizing the Attorney General of Canada to seek an order for the committal of B. Nguyen, D. Nguyen and Tran for the purpose of prosecution.

[3]             The three face charges in the U.S.A. which correspond to the following Canadian offences:

1)    B. Nguyen and D. Nguyen are charged with an offence similar to conspiracy to produce a substance included in Schedule II of the Controlled Drugs and Substances Act, R.S. 1996, c. 19 (the “CDSA”) contrary to s. 7 of the CDSA and s. 465 of the Criminal Code (the “Code”);

 

2)     D. Nguyen is also charged with the offence of laundering proceeds of crime contrary to s. 462.31 of the Code.

[4]             Tran, who is also charged with the offence of laundering proceeds of crime contrary to s. 462.31 of the Code, with the consent of the Crown, was granted her interim judicial release pending the extradition hearing. She appeared before Associate Chief Justice Cullen who released her on conditions, including a curfew and a $150,000 surety. Tran is the mother and principal caregiver of three young children, a factor which apparently played a significant role in the Crown’s consenting to her release, albeit with strict terms. She was released shortly after her arrest.

[5]             The Crown opposed the application which came before me on Friday, February 17, 2012 by B. Nguyen and D. Nguyen for judicial interim release. After hearing submissions from both the Crown and the defence on late Friday afternoon, I granted B. Nguyen and D. Nguyen their applications and ordered that they be released with counsel establishing the bail conditions upon which the two accused were to be released. I set the surety for each at $100,000. In rendering my decision as to the accuseds’ release, I did not provide reasons, advising that I would later file written reasons for my decision. What follows are my reasons.

[6]             The Crown opposed the release of the two accused on the primary, secondary and tertiary grounds found in s. 515 (10) of the Code, asserting that their detention is necessary to ensure their attendance in court, that their detention is necessary for the protection or safety of the public, and the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including those found at s. 515(10)(c) of the Code.

[7]             In reaching my decision, I took into account the Crown’s submissions with respect to the three grounds found in s. 515(10), the Crown’s description as to the nature and scale of the marihuana grow operation which led to the charges against B. Nguyen and D. Nguyen, and the fact that this is a proceeding under the Extradition Act and thereby involves the need for Canada to honour its international obligations. As noted in United States of America. v. Edwards, 2010 BCCA 149, at para. 18, the international obligation requires that:

... the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings: see the decision of Woods, J.A. in United States of America v. Ross, CA017111, July 5, 1993.

[8]             The Crown submitted that among the factors to be considered is the size and sophistication of the grow operation in which the two accused and a number of others were involved. The operation involved the acquisition of a number of homes located in Renton, Kent, Covington, and Seattle in which marihuana was grown, with U.S. authorities advising that there were some 5,503 marihuana plants involved in the grow operation. The evidence filed by the U.S. authorities indicate that D. Nguyen and his wife, the accused, Tran, operated a company called Kent Distributors Ltd., which the record of the case for the prosecution points to as the business centre for the grow operation.

[9]             The financial size of the operation is reflected in the record of the case which indicates cash flow of some $3.6 million (USD), 86 percent of which was in currency and which the parties to the operation laundered through a number of banks and bank accounts, thereby circumventing currency reporting requirements.

[10]         The Crown said that U.S. authorities charged 11 persons in connection with the grow operations and that six pled guilty to felony offences, with the three, B. Nguyen, D. Nguyen and Tran, being among the remaining five facing charges. The accused, D. Nguyen has a criminal record in Canada of fraud over $5,000 for which in September 2006 he pleaded guilty and was sentenced to twelve months incarceration of which he served four months.

[11]         A further factor noted by the Crown is that the offences with which the two accused face in the U.S. could lead to incarceration for 20 years, although the defence pointed out that the six who were arrested in the U.S.A. five to seven years ago in connection with the grow operation, served varying sentences roughly in the range of two years and all have now been released.

[12]         Against the factors found in the Crown’s submissions, I must consider the factors reflected in the defence submissions. Ms. Grace noted that although both B. Nguyen and D. Nguyen were born in Vietnam, both have lived in Canada for the past 35 years and their family is all in North America. Both accused are Canadian citizens and reside with their own families in their own homes. B. Nguyen and his family operate a convenience store, financed in part with the equity they have in the family home. D. Nguyen is described as owning a home in which he has $50,000 equity and he operates a children’s store.

[13]         I am satisfied that given their lengthy ties to Canada as well as those of their respective families, the imposition of substantial sureties, coupled with the strict bail conditions created by both Crown and defence, that B. Nguyen and D. Nguyen can be given judicial interim release pending their extradition hearing.

“R.M. Blair J.”

BLAIR J.