Thursday, June 21, 2018

Accused Chinese gang leader who had case tossed knows all the court tricks


Accused Chinese gang leader who had case tossed knows all the court tricks

Nick Chan is possibly the most allegedly dangerous 'vexatious litigant,' as those who so frequently resort to the courts are called, in the entire country



Nick Chan leaves court in Calgary on April 17, 2018.Leah Hennel/Postmedia
Nicholas Cypui (Nick) Chan, the alleged Calgary gang leader who this week beat organized crime and murder charges for the second time in two years, is a most curious fellow who is also keenly aware of his rights — every last one of them.
Chan hasn’t just twice defeated the best efforts of police and prosecutors to prove he is the “directing mind” of the violent FOB (Fresh Off the Boat) gang. During lengthy stays behind bars, he has also enlisted the Alberta Human Rights Commission, the correctional ombudsman, the Alberta College of Physicians and Surgeons, the vehicle of civil lawsuits and prison pastors and psychologists to help him assert those rights.
In other words, Chan is possibly the most allegedly dangerous “vexatious litigant,” as those who so frequently resort to the courts are called, in the entire country.
In one case, for instance, Chan made 28 complaints about his treatment while in pre-trial custody for heroin trafficking offences, including that he’d been denied vegetarian meals (though he admitted he wasn’t always a vegetarian) and that wasn’t allowed to wear his special orthotic shoes while in jail.
The judge in that case found that inmates had to wear prison-issued running shoes for security reasons. He also dismissed most of Chan’s complaints, but upheld several, and ultimately reduced his sentence because of the hardship he suffered.
In that 2005 decision, Alberta Court of Queen’s Bench Judge P.J. McIntyre gave Chan three-to-one credit for his time in pre-trial custody, instead of the then-usual two-to-one credit.
As for Chan’s alleged post-traumatic stress disorder, which a psychologist said appeared to be related to his having been strip-searched in jail, the judge dryly noted the psychologist “was unaware” that at Christmas 2002, a friend of Chan’s was shot while they were at a mall, and suggested that may have been rather more traumatic than a strip search.
Chan has had remarkable success in various courts, in fact.
In 2011, he convinced the Immigration and Refugee Board to reverse a decision refusing his Chinese wife, Yong Yi Guan, permanent resident status in Canada. A one-member panel found that Chan “came across as a very quiet, reserved person” who opened up under her questioning. The woman was allowed to come to Canada.
But by last year, when Chan unsuccessfully tried to have his favourite lawyer be paid better than legal aid rates to defend him in the second organized crime and murder charges — he was acquitted by a jury in March 2016 in a triple killing at Calgary’s Bolsa Restaurant — he said he had relied on his family members and “his girlfriend” to pay the same lawyer on the Bolsa charges.
Thus, it appears that a few years after he won the right to bring his wife to Canada, he already had a girlfriend.
Ultimately, Chan even won a new trial in his heroin trafficking case, convincing the Court of Appeal in 2008 that the trial judge had made critical errors in his decision.

Police investigate a triple-murder at the Bolsa Restaurant in Calgary, Jan. 1, 2009. Stuart Dryden/Postmedia/File

Chan has never been alleged, in either of the murder cases, to have been a shooter. Rather, he was alleged to have been the man ordering the hits.
On Tuesday, Alberta Court of Queen’s Bench Judge Paul Jeffrey stayed all charges against Chan, who is now 40, saying it took too long to bring him to trial.
Coupled with an earlier ruling, where Jeffrey said the Crown’s key witness, a so-called “co-operating witness” (in other words, a former gang member turned police informant), wouldn’t be allowed to testify, the decisions have sent ripples of shock through the ranks of Alberta prosecutors.
Police and Crown prosecutors traditionally enlist such witnesses, with all their credibility problems and often lengthy criminal records, only because gang members are savvy and difficult to prosecute.
What judges most often do with witnesses who help police to save their own skins or to win favourable deals is to warn jurors repeatedly and in strong language that they must be cautious about accepting their evidence, and that the witnesses may not be credible.
Chan has had remarkable success in various courts
Yet Jeffrey simply said that in this prosecution — which alleged that at Chan’s direction, the FOB gang killed non-gangster Kevin Anaya when they couldn’t find their alleged target — the co-operating witness, whose identity is protected by a publication ban, wouldn’t even be allowed to take the stand.
The judge hasn’t released the reasons for that decision yet.
He did release the reasons for his stay decision Wednesday, but unusually also placed them under a publication ban. Prosecutors have already said they are appealing.
R v Jordan, the Supreme Court of Canada’s leading case on delay, set time limits for cases to be brought to trial and urged court players to fight what it called a “culture of complacency.” These limits involve calculating how much of the delay can be attributed to the defence, how much is institutional, and how much is inherent to some of the modern complex cases.
But the high court also left room for exceptional cases.
Presumably, one such as this, where an accused can reasonably be deemed a danger to the public, and where he is in pre-trial custody pending two sets of charges in relation to two different murders, might qualify.
Chan walked out of court a free man on Tuesday, released on bail.