@B,00021377,OR
@1@Z20050826
@2
Her Majesty the Queen v. West et al.
[Indexed as: R. v. West]
@3
77 O.R. (3d) 185
[2005] O.J. No. 3548
Docket: C42275
@4
Court of Appeal for Ontario,
Weiler, Goudge and Feldman JJ.A.
August 26, 2005
@6
Charter of Rights and Freedoms -- Court of competent
jurisdiction -- Justice of peace hearing application under s.
490(9) of Criminal Code being court of competent jurisdiction
to order return of money under s. 24(1) of Charter -- Canadian
Charter of Rights and Freedoms, s. 24(1) -- Criminal Code,
R.S.C. 1985, c. C-46, s. 490(9).
Criminal law -- Detention of things seized -- Forfeiture --
Ordinary rules of evidence about hearsay applying to forfeiture
application under s. 490(9) of Code -- Section 490(9) not
requiring that seized money be automatically returned to lawful
owner if Crown's forfeiture application failed -- Owner
required to bring action in replevin before superior court
judge, application pursuant to s. 490(7) of Code before justice
of peace, or application under s. 24(1) of Charter for return
of money -- Canadian Charter of Rights and Freedoms, s. 24(1)
-- Criminal Code, R.S.C. 1985, c. C-46, ss. 490(7), (9).
The appellants were stopped at an airport and their bags were
searched on suspicion that they were carrying drugs. No drugs
were found but each appellant had approximately $20,000 in his
possession. That money was seized without a warrant. The
appellants were never charged with an offence. The Crown
brought an application under s. 490(9) of the Criminal Code for
forfeiture of the money, alleging that the appellants were
couriers bringing money obtained through crime from Halifax
into Toronto for laundering. The application was dismissed. The
justice of the peace observed that the affidavits submitted by
the Crown contained double and triple hearsay statements. He
held that the ordinary rules of evidence applied, and he
declined to accept the hearsay evidence. He held that under s.
490(9), he had jurisdiction to either return the money or to
have it forfeited to the Crown. As the forfeiture application
failed, he held that he had no choice but to order the money
given back to the appellants. On app eal by the Crown, the
appeal judge held that hearsay evidence can be considered under
s. 490(9) provided that the court is satisfied that the hearsay
evidence is credible and trustworthy. He allowed the appeal and
directed a new hearing before a different justice of the peace,
suggesting that at that hearing the Crown might be permitted to
present its evidence first-hand without bringing a motion to
introduce fresh evidence. The appellants appealed.
Held, the appeal should be dismissed.
The ordinary rules of evidence apply to an application for
forfeiture under s. 490(9) of the Code. Hearsay evidence is
admissible only if the criteria of necessity and reliability
are met. While the application appeal judge erred in ruling
hearsay evidence admissible under s. 490(9), the justice of the
peace also erred in simply ruling that all the hearsay evidence
was inadmissible. Accordingly, a new hearing was required. To
force the Crown to proceed on the same affidavit at the new
hearing would undermine the order for a new hearing. On the
other hand, allowing the Crown free rein to allege facts not
alleged in the original application, and to thereby better its
case, would not be fair to the appellants. Allowing the Crown
to present first-hand evidence of the facts already alleged was
a fair compromise. [page186]
The justice of the peace erred in interpreting s. 490(9) as
requiring him to order that the money automatically be returned
to the appellants if the Crown's forfeiture application
failed. If the appellants wished to have the money returned to
them, they had to bring an action in replevin before a superior
court judge or an application pursuant to s. 490(7) of the Code
before a justice of the peace. Moreover, if the appellants had
an argument under the Canadian Charter of Rights and Freedoms,
a justice of the peace acting under s. 490(9) is a court of
competent jurisdiction and has the implied power to order the
return of money under s. 24(1) of the Charter on a Charter
application.
@5
R. v. Allan (2003), 2003 1935 (ON SC), 64 O.R. (3d) 610, [2003] O.J. No. 2466,
2003 1935 (ON SC), [2003] O.T.C. 567 (S.C.J.); R. v. Luther, [2002] N.S.J. No.
194, 204 N.S.R. (2d) 265, 639 A.P.R. 265, 2002 NSSC 100 (S.C.);
R. v. Mac, 1995 2071 (ON CA), [1995] O.J. No. 604, 97 C.C.C. (3d) 115, 80 O.A.C.
26 (C.A.); R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35, [2004] S.C.J. No.
48, 2004 SCC 50, 354 A.R. 292, 323 N.R. 373, 329 W.A.C. 292, [2004] 9 W.W.R.
205, 122 C.R.R. (2d) 136, 185 C.C.C. (3d) 338, 2004 SCC 50, 21
C.R. (6th) 197, 2004 SCC 50, 28 Alta. L.R. (4th) 201; R. v. Thomas, [1998] 3
S.C.R. 535, 1998 774 (SCC), [1998] S.C.J. No. 90, 58 B.C.L.R. (3d) 207, 233
N.R. 266, 1998 774 (SCC), [1999] 5 W.W.R. 380, 130 C.C.C. (3d) 225, 21 C.R.
(5th) 42; R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, [1989]
S.C.J. No. 50, 1989 72 (SCC), 58 Man. R. (2d) 63, 61 D.L.R. (4th) 725, 95 N.R.
149, 1989 72 (SCC), [1989] 4 W.W.R. 385, 50 C.C.C. (3d) 566, 69 C.R. (3d) 281
(sub nom. R. v. Zeolkowski, R. v. Smith), consd
Other cases referred to
R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J.
No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, 88 C.R.R. (2d) 189,
159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 2001 SCC 81 (sub nom.
Ontario v. 974649 Ontario Inc.); R. v. B. (K.G.), [1993] 1
S.C.R. 740, 1993 116 (SCC), [1993] S.C.J. No. 22, 148 N.R. 241, 79 C.C.C. (3d)
257, 1993 116 (SCC), 19 C.R. (4th) 1; R. v. Daley, 2001 ABCA 155, [2001] A.J. No. 815, 2001
ABCA 155, 2001 ABCA 155, [2001] 9 W.W.R. 16, 94 Alta. L.R. (3d) 238, 281 A.R.
262, 2001 ABCA 155, 156 C.C.C. (3d) 225, 44 C.R. (5th) 26, 85 C.R.R. (2d) 215
(C.A.); R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J.
No. 117, 1996 154 (SCC), 30 O.R. (3d) 641n, 141 D.L.R. (4th) 193, 204 N.R. 241,
1996 154 (SCC), 111 C.C.C. (3d) 129, 2 C.R. (5th) 245; R. v. Holmes (2002), 62
O.R. (3d) 146, 2002 45114 (ON CA), [2002] O.J. No. 4178, 169 C.C.C. (3d) 344, 7
C.R. (6th) 287 (C.A.); R. v. Klymchuk, [2000] O.J. No. 4435,
[2000] O.T.C. 991 (S.C.J.); R. v. Lavallee, [1990] 1 S.C.R.
852, 1990 95 (SCC), [1990] S.C.J. No. 36, 67 Man. R. (2d) 1, 108 N.R. 321,
1990 95 (SCC), [1990] 4 W.W.R. 1, 55 C.C.C. (3d) 97, 76 C.R. (3d) 329; R.
v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613, [1985] S.C.J. No. 79, 14 O.A.C.
33, 1985 22 (SCC), 24 D.L.R. (4th) 9, 63 N.R. 321, 23 C.C.C. (3d) 97, 49 C.R.
(3d) 1, affg (1982), 1982 1810 (ON CA), 39 O.R. (2d) 41, 141 D.L.R. (3d) 330,
1982 1810 (ON CA), 70 C.C.C. (2d) 129, 29 C.P.C. 159, 29 C.R. (3d) 153 (C.A.)
Statutes referred to
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 12 [as am.]
Canadian Charter of Rights and Freedoms, ss. 8, 24
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11
Criminal Code, R.S.C. 1985, c. C-46, ss. 462.34 [as am.],
462.38 [as am.], 489 [as am.], 489.1 [as am.], 490 [as am.],
518 [as am.], 655, 686 [as am.]
Rules and regulations referred to
Rules of the Ontario Court of Justice in Criminal Procedures,
Authorities referred to
Freckleton, I., and H. Selby, "Tracker Dog Evidence" in Expert
Evidence (Sydney: Law Book Co., 1993) [page187]
@6
APPEAL from the judgment of Langdon J., [2004] O.J. No. 3243
(S.C.J.), setting aside an order of Spadafora J.P., dated
July 31, 2003, dismissing the Crown's application for
forfeiture brought under s. 490(9) of the Criminal Code, R.S.C.
1985, c. C-46 and ordering a new hearing.
@8
Brian J. Hebert, for appellants.
Fergus O'Donnell and Lois McKenzie, for respondent.
@7
The judgment of the court was delivered by
[1] WEILER J.A.:-- The Crown brought an application under s.
490(9) of the Criminal Code, R.S.C. 1985, c. C-46, for
forfeiture of money it seized from James West, Carl Allan
Beavies and Aldon Troy Johnson. Section 490(9) permits the
return of property seized where, as in this case, the three-
month time limit for detention of property seized during a
criminal investigation has expired, an order to continue
detention of the seized property has not been obtained and
criminal proceedings have not been instituted against the
persons from whom it was seized. In these circumstances, where
the person in possession of the money has lawful possession of
it, the money may be returned to the lawful owner, or, if the
person from whom it was seized does not have lawful possession
of it, the money may be returned to the lawful owner if known
or forfeited to Her Majesty if the lawful owner is unknown. The
section is silent as to what is to happen in the event that the
money has been improperly seized .
[2] This appeal raises four issues. The first issue is
whether the ordinary rules of evidence about hearsay apply to a
forfeiture application under s. 490(9). The second is whether
the R.C.M.P. officers did not have reasonable and probable
grounds to seize the money and therefore improperly seized it.
The third is whether this court should order the Crown to
return the money seized. The fourth is whether the Crown should
be ordered to pay the appellants' costs.
[3] For the reasons that follow, I would hold that the
ordinary rules of evidence do apply to an application for
forfeiture under s. 490(9). While much of the evidence before
the justice of the peace was disputed as being hearsay, the
justice of the peace did not decide whether the police had
reasonable and probable grounds to seize the money on the
remaining undisputed evidence. Inasmuch as there is some
evidence that would support the conclusion that the seizure of
the money was lawful, I am of the opinion that it is necessary
to hold a new hearing. I would therefore not decide the second
issue. Assuming, however, that [page188] the seizure of the
money was unlawful, I would hold that the justice of the peace
erred in interpreting s. 490(9) as requiring him to order that
the money automatically be returned to the appellants if the
Crown's application for forfeiture failed. On my reading of
the existing jurisprudence, if the appellants wish to have the
money returned to them, they must initiate some proc edure for
its return. In the circumstances, I would not award costs
against the Crown.
Facts
[4] The facts underlying this appeal are contained in the
affidavit of Constable Frank Mauti. While the admissibility of
almost all of that affidavit is contested, for the purposes of
this appeal, the following suffices. On November 5, 2001, West,
Beavis and Johnson arrived in Toronto's Lester B. Pearson
airport from Halifax each carrying one carry-on bag. As they
walked from the gate towards the baggage claim, they passed
R.C.M.P. officers and a police dog. Apparently, all three
looked nervous. The dog sniffed Johnson's pocket. Each of the
appellants was asked certain questions and gave certain answers
that led to the appellants allegedly agreeing to have their
carry-on bags searched. No illegal substances were discovered.
However, each had approximately $20,000 in cash, mostly in $20
bills. They offered explanations for having the money that the
application appeal judge, Langdon J., characterized as "highly
improbable, inconsistent and/or conflicting" (at para. 5). The
officers did not accept the explan ations and seized the
$61,445 in cash without a warrant.
[5] The income tax returns of the appellants appeared to
indicate that they would have had no way of accumulating such
sums.
[6] West, Beavis and Johnson were never charged with an
offence related to the funds.
[7] On February 5, 2003, the Crown applied to the Ontario
Court of Justice for an order for forfeiture under s. 490(9) of
the Criminal Code. The Crown's position was that the
appellants were couriers bringing money obtained through crime
from Halifax to Toronto for laundering. The details of the
incident were contained in the affidavit of Const. Mauti, the
proceeds of crime investigator assigned to the file. None of
the officers who seized the money "marshalled" the alleged
facts to which the appellants objected on the basis of hearsay.
Appendix A contains a detailed breakdown of the affidavit. The
paragraphs to which objection is taken may be summarized as
follows:
(a) Paragraphs containing Const. Mauti's recitation of the
observations of the seizing officers at the airport and the
statements made by the appellants to them; [page189]
(b) Paragraphs repeating the contents of a telephone call to
another investigator from one Paul Yue, who claimed that he
had a successful auto business and that $39,500 of the
money seized from the appellants came from him. As well,
objection is taken to the paragraphs indicating that Yue's
parents told an investigator the business was unsuccessful
and no longer operating;
(c) Paragraphs stating the appellants' (and Paul Yue's)
criminal records;
(d) Paragraphs containing details of the appellants' crack
cocaine trafficking charges in Halifax in the summer of
2002 as recounted by a Halifax investigator;
(e) Paragraphs indicating the results of inquiries with the
lottery corporation that would rebut the assertion the
money was won in a lottery, and the result of an inquiry
with the Superintendent of Bankruptcy; and
(f) The opinion of Corporal Michael Cowley concerning the
characteristics of money laundering and courier activity.
[8] The Crown's application record also contained an
affidavit from Inspector Donald Panchuk, a specialist in
proceeds of crime investigations, setting out his conclusions
about the likelihood of the seized money being proceeds of
crime, and an affidavit from Inspector Ron Allen, outlining his
expert opinion with respect to the appellants' likely role in
the drug trafficking hierarchy. For the purposes of this
appeal, it is unnecessary for me to comment on the
admissibility of the expert opinions of Inspector Panchuk and
Inspector Allen. Unless the affidavit of Mauti is admissible to
establish a factual foundation for the experts' opinions,
their opinions would not be admissible: see R. v. Lavallee,
1990 95 (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36.
[9] West, Beavies and Johnson proffered no evidence at the
hearing. A review of Mauti's affidavit and of counsel's
submissions in relation to that affidavit indicates that West,
Beavies and Johnson did not dispute that they had in their
possession the sums of cash, in small denominations, attributed
to each of them. Similarly, they did not contest para. 31 of
the affidavit, in which Mauti gives his opinion as an expert
that the presence of this amount of cash in these denominations
is usually associated with street level crime, or paras. 71 to
77 of his affidavit describing how money is laundered and his
belief as to the positions of West, Beavies and Johnson as
couriers in that scheme. Nor did the [page190] appellants
contest the paragraphs indicating that their income tax returns
showed that they did not have sufficient income to accumulate
these amounts of cash.
[10] Spadafora J.P. observed that the affidavits contained
double and triple hearsay statements. He queried how the
deponents could effectively be cross-examined. He held, "I am
going to rule that the Rules of Evidence apply in this matter
here ... I will not accept hearsay evidence in this matter". He
held that under s. 490, he had jurisdiction to either return the
money or to have it forfeited to Her Majesty. As the forfeiture
application failed, he held that he had no choice but to order
the money given back to West, Beavies and Johnson.
[11] The Crown appealed. Langdon J. agreed that the Mauti
affidavit, filed in support of the Crown's application,
contained a substantial amount of hearsay. He commented,
"Indeed, only a small percentage of the information contained
in the affidavit was information known to the deponent as a
result of his personal observations" (para. 13).
[12] Noting that hearsay evidence is admissible in
applications under s. 462.38, Langdon J. accepted the reasoning
of Nordheimer J. in R. v. Allan (2003), 2003 1935 (ON SC), 64 O.R. (3d) 610,
2003 1935 (ON SC), [2003] O.J. No. 2466 (S.C.J.), and held that hearsay
evidence could be considered under s. 490(9) provided that the
court was satisfied the hearsay evidence was credible and
trustworthy. In coming to his conclusion, Langdon J. rejected
Moir J.'s approach in R. v. Luther, 2002 NSSC 100, [2002] N.S.J. No. 194, 204
N.S.R. (2d) 265 (S.C.). Moir J. concluded that because s. 490
finally determines property rights, meaningful cross-
examination was necessary and hearsay should generally be
excluded.
[13] Langdon J. also considered that rule 4.06(2) of the
Rules of the Ontario Court of Justice in Criminal Procedures,
S.I./97-133 requires that an affidavit state facts "within the
personal knowledge of the deponent" or "other evidence that the
deponent could give if testifying as a witness in court".
Applying rule 4.06(2) would render inadmissible much of the
affidavit of Mauti. However, Langdon J. held that "if the law
of evidence permits hearsay, then the Rules of Procedure cannot
exclude it. The Rules Committee is not empowered to pass rules
that alter substantive rules of evidence" (para. 63).
[14] Langdon J. held that Spadafora J.P. ought to have
received the hearsay evidence considered if it was worthy of
belief and then weighed it accordingly. That said, he held that
"If first-hand evidence is readily obtainable, then hearsay
should not be tendered" (para. 73). He commented that it was
difficult to understand why affidavits by the officers who made
the seizure of the [page191] cash at the airport had not been
placed before the court, adding that such affidavits would
preserve the accuseds' opportunity for meaningful cross-
examination. Notwithstanding these comments, he allowed the
appeal and directed a new hearing before a different justice of
the peace suggesting that at that hearing the Crown might be
permitted to present its evidence first-hand without bringing a
motion to introduce fresh evidence. First-hand evidence would
allow for meaningful cross-examination of the witnesses.
[15] Inasmuch as both judges below focused their comments on
s. 490(9), I will begin my analysis with this section.
Issues
- Is hearsay evidence admissible on a forfeiture
application under s. 490(9)?
A. The legislative scheme
[16] The Code contains various provisions for the seizure,
detention and release of the proceeds of crime. Section 489(2)
allows a peace officer who is lawfully present in a place in
the execution of his or her duties to seize without a warrant
anything the officer believes on reasonable grounds has been
obtained or used in the commission of an offence or that will
afford evidence of the commission of an offence against any
federal Act. Under s. 489.1, if the peace officer is not
satisfied that there is no dispute as to who is lawfully
entitled to possession of the things seized, the officer must
bring the goods seized before a justice or make a report to a
justice. Section 490(1) requires the justice to either order
the things returned or to order their detention if satisfied
that the things are required for the purposes of an
investigation or a proceeding. Section 490(2) provides that the
things seized cannot be detained for more than three months
unless further detention is warranted "having regard to the
nature of the investigation", or a proceeding has been
instituted. In those situations, a further order for detention
can be made. Section 490(5) imposes a duty on a peace officer
to apply for an order under s. 490(9) when satisfied that the
continued detention of the things seized is no longer required.
Section 490(6) imposes a similar duty on a peace officer when
the period of detention has expired without the institution of
proceedings. Section 490(7) permits the person from whom things
were seized to make an application for the return of the items
seized after three months or, pursuant to s. 490(8) in the case
of hardship, an application may be brought before three months.
[17] Section 490(9) authorizes a judge to order a "seized
item" to be returned to the person from whom it was seized if
possession of [page192] it is lawful. If the person from whom
it was seized does not have lawful possession of the seized
item, the provision authorizes the judge to return the item to
the lawful owner or forfeit it to Her Majesty if the lawful
owner is unknown. Section 490(9) envisages an application by
the Crown for forfeiture and a cross-application for return of
the seized property by the person lawfully entitled to possess
it and, perhaps, by another person claiming an interest in it,
pursuant to s. 490(10). As McLachlin C.J.C. observed in R. v.
Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35, [2004] S.C.J. No. 48, at para. 14,
"Section 490(9) says nothing about returning the item seized on
the basis that it was unlawfully seized." Instead, as she
observed at para. 30, the section is concerned with "basically
property management functions that do not raise the propriety
of the seizure of prope rty". For ease of reference I have
reproduced s. 490(9) below:
490(9) Subject to this or any other Act of Parliament, if
(b) a justice, in any other case,
is satisfied that the periods of detention provided for or
ordered under subsections (1) to (3) in respect of anything
seized have expired and proceedings have not been instituted
in which the thing detained may be required or, where those
periods have not expired, that the continued detention of the
thing seized will not be required for any purpose mentioned
in subsection (1) or (4), he shall
(c) if possession of it by the person from whom it was
seized is lawful, order it to be returned to that
person; or
(d) if possession of it by the person from whom it was
seized is unlawful and the lawful owner or person
who is lawfully entitled to its possession is
known, order it to be returned to the lawful owner
or to the person who is lawfully entitled to its
possession,
and may, if possession of it by the person from whom it was
seized is unlawful, or if it was seized when it was not in
the possession of any person, and the lawful owner or person
who is lawfully entitled to its possession is not known,
order it to be forfeited to Her Majesty, to be disposed of as
the Attorney General directs, or otherwise dealt with in
accordance with the law.
[18] An exception to s. 490(9) is contained in s. 490(9.1),
authorizing the continued detention of the things seized if
their continued detention is required for an investigation, a
proceeding, or other specified reason in the section, and
provided continued detention is in the interests of justice.
Finally, s. 490(17) gives a person "who feels aggrieved by an
order" made under subsection 490(9) a right of appeal.
[page193]
B. Application of the legislative scheme to this appeal
[19] The Crown concedes that the appellants' possession of
the money is presumed to be lawful. The Crown also concedes
that it bears the onus of proof of unlawfulness and that the
standard of proof it must meet in proving that the appellants'
possession is unlawful is the criminal standard of proof beyond
a reasonable doubt: see R. v. Mac, 1995 2071 (ON CA), [1995] O.J. No. 604, 97
C.C.C. (3d) 115 (C.A.), at paras. 15-17.
[20] Both judges below held that Mauti's affidavit contained
large amounts of hearsay and that the source of the information
and belief was often not specified.
[21] The Allan decision on which the application appeal judge
relied, in allowing the appeal and permitting the hearsay in
Mauti's affidavit to be weighed, did not involve a forfeiture
application by the Crown pursuant to s. 490. Rather, it
involved an application pursuant to s. 462.34(4) of the
Criminal Code by a person accused of living off the avails of
prostitution whose assets were the subject of a restraining
order. The accused applied to vary the order in order to
continue to be able to pay legal fees and living expenses.
Section 462.34 also authorizes the court to impose conditions
on access to funds such as requiring the applicant to enter
into a recognizance with or without sureties. Nordheimer J.
held that credible hearsay was admissible otherwise the
application would be turned into a trial within a trial, where
the determination of the application could impinge on the
proper determination of the charges at issue.
[22] Here, there is only one proceeding; and the order under
s. 490(9) is in the nature of a final order, as opposed to an
interlocutory order to which conditions may be attached.
Because this is a forfeiture application, the burden of proof
is on the Crown, not the accused. The burden of proof is the
highest standard, as opposed to a balance of probabilities.
These factors suggest a stricter approach to the rules of
evidence.
[23] There is a link between the admissibility of evidence
and the standard of proof. In R. v. Zeolkowski, [1989] 1 S.C.R.
1378, 1989 72 (SCC), [1989] S.C.J. No. 50, Sopinka J., on behalf of the
Supreme Court, determined that hearsay could be admitted at a
hearing for a prohibition order regarding firearms. One of the
factors on which he based his decision was that the burden of
proof at the hearing was simply proof on a balance of
probabilities. At pp. 1385-86 S.C.R., he stated:
It is also relevant to note that the burden which the
applicant bears at the hearing is not that of proof beyond a
reasonable doubt, but simply proof on a balance of
probabilities. In R. v. McWhirter, Hart J.A., for the court,
[page194] took note of this reduced standard in reaching
the conclusion, at p. 186, that ". . . although these
proceedings arise under the Criminal Code Parliament did not
intend that they be conducted in the manner of a criminal
trial". I agree with this conclusion.
In this case, the opposite is true. The applicant Crown has
the burden of proof beyond a reasonable doubt, suggesting
that the proceedings are to be conducted in the manner of a
criminal trial.
[24] Another factor that informed the decision of Sopinka J.
was that the role of the presiding judge was simply to confirm
that the peace officer had reasonable grounds for acting. In
this case the role of the presiding judge also requires the
judge to confirm that the peace officer had reasonable grounds
for acting. But the presiding judge must do more. The presiding
judge must also decide whether the Crown has proved beyond a
reasonable doubt that the appellants' possession of the seized
items was unlawful.
[25] A further factor in Zeolkowski was Parliament's
direction under the applicable legislation that, "all relevant
evidence" was to be admitted. Sopinka J. agreed with the Court
of Appeal for Ontario that the use of this phrase meant that
frailties in the evidence were a matter of weight, rather than
admissibility. Thus, when Parliament wishes to indicate a lower
threshold for the admissibility of evidence than the ordinary
rules of evidence, it often uses language to convey this.
Another example of such indicative language can be seen in
s. 518(1)(e) of the Criminal Code, which permits a justice, on
an application for judicial interim release, to "receive and
base his decision on evidence considered credible or
trustworthy". In this case, there is no wording that would
suggest anything but the ordinary evidentiary rules apply.
[26] The application appeal judge also appreciated that
Mauti's affidavit did not permit the appellants to effectively
cross-examine individuals about the information it contained.
The appellants' inability to effectively cross-examine is
perhaps one reason why he would have allowed the Crown to file
a fresh affidavit. Just as the failure of a court to permit
proper cross-examination is an error of law, so, too, is
admitting an affidavit that contains contentious facts that
cannot be tested by cross-examination or that lacks other
guarantees of reliability. Cross-examination is a revered tool
for testing the reliability of evidence. If cross-examination
is not available, there must be some other circumstance that
guarantees credibility and accuracy in its stead: R. v.
Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, at pp.
1083-84 S.C.R., citing R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740,
1993 116 (SCC), [1993] S.C.J. No. 22. Otherwise, the trier of fact will not
be able to fully evaluate the evidence. U nless the trier of
fact can evaluate and have confidence in the accuracy of the
evidence, proof beyond a reasonable doubt has no meaning.
[page195]
[27] Because proof beyond a reasonable doubt that the
appellants' possession of the money is unlawful is required
under s. 490(9), the inescapable conclusion is that Parliament
intended the proceedings be conducted in the manner of a
criminal trial. Rule 4.06(2) is not in conflict with the law of
evidence; it succinctly sets forth the law of evidence by
permitting evidence that could be given if testifying in court.
Evidence that could be given if testifying in court would
include hearsay admitted as an exception to the hearsay rule on
the basis of necessity and reliability. Pursuant to s. 655 of
the Criminal Code, evidence that can be given in court also
consists of the admission by an accused or his counsel of any
fact alleged against him for the purpose of dispensing with
proof of that fact. An affidavit can also contain statements of
information and belief about non-contentious facts if the
source of the belief is specified. Simply because the evidence
in this proceeding may be tendered in wri tten instead of oral
form does not mean that the law of evidence is different.
Nothing in the provision suggests any statutory exception to
the rules of evidence: see Luther, supra, at p. 277 N.S.R.
[28] Having regard to the standard of proof, function of the
judge, and wording of the section in this case, I would hold
that the ordinary rules of evidence apply at a hearing under s.
490(9). I would further hold that the application appeal judge
erred in holding that the ordinary rules of evidence do not
apply on a s. 490(9) hearing. Hearsay is thus inadmissible
unless there is compliance with rule 4.06, the test of
reliability and necessity must be met.
[29] Furthermore, although in Allan Nordheimer J. relaxed the
rules of evidence in favour of the accused and held that
hearsay could be admitted in an application under s. 462.34(4),
he also held that the court must ensure that the hearsay was as
reliable and trustworthy as possible. At para. 19 of his
reasons, he held that hearsay affidavits must comply with the
following conditions:
-- affidavits should clearly identify the sources of the
information relied upon,
-- affidavits should set out when, where, how, and from
whom the information relied on was obtained,
-- if documents are referred to and/or relied upon, then
the documents should either be exhibited to the
affidavit or otherwise identified and supplied to the
opposing parties;
-- if it is not otherwise evident, an explanation should be
provided as to why the evidence is not being provided
from persons having personal knowledge of the facts
deposed to. [page196]
[30] As the application appeal judge acknowledged, most of
Mauti's affidavit is hearsay and in a number of instances the
sources of information are not specified. The Crown did not
explain why persons having personal knowledge of the facts did
not provide the evidence given by hearsay, nor is this evident.
In addition, I would observe that not all of the documents
referred to in Mauti's affidavit are attached as exhibits to
the affidavit. A certificate of the convictions purporting to
be signed by the officer having custody of the records and
proof of identity were not tendered as required by s. 12 of the
Canada Evidence Act, R.S.C. 1985, c. C-5, as amended by S.C.
1992, c. 47, s. 66. Thus, the affidavit in this case does not
even meet the lesser conditions for admissibility specified in
Allan.
[31] While the application appeal judge erred in ruling
hearsay admissible under s. 490(9), the judge at first instance
also erred in simply ruling that all hearsay was inadmissible.
Also, he did not decide, as he should have, whether even on the
evidence in the affidavit that was not contested, the police
officers had reasonable and probable grounds to make the
seizure and therefore whether it was lawful. As well, as I will
indicate later in these reasons, the judge at first instance
also erred in interpreting s. 490(9) as requiring him to
automatically order that the money be returned to West, Beavies
and Johnson in the event that the Crown's application for
forfeiture failed. I would therefore order a new hearing.
C. Scope of rehearing
[32] The application appeal judge suggested that, at the new
hearing, the Crown be permitted to present its evidence by
filing a fresh affidavit without introducing new evidence. The
appellants submit that allowing the Crown to do so would be
unfair to them. The Crown submits that it cannot be bound in
this manner, and that at a new hearing it ought to be free to
introduce whatever evidence it deems appropriate.
[33] I would decide this ancillary issue by analogy to s.
686(8). Section 686(8) allows a court hearing an appeal to make
"any order ... that justice requires". The section does not
confer unlimited discretion on a court of appeal to issue
ancillary orders. In R. v. Thomas, 1998 774 (SCC), [1998] 3 S.C.R. 535, [1998]
S.C.J. No. 90, the majority of the Supreme Court held that
justice requires that, at least where there has been a trial by
jury, a court of appeal cannot issue an order that is at direct
variance with the court's underlying judgment. A court of
appeal must assess whether it has jurisdiction to issue a
particular ancillary order having regard to the basis upon
which the appeal is disposed. [page197]
[34] The minority in Thomas held that the determination of
what "justice requires" involves a consideration of both the
individual interest of the accused in a fair trial and the
collective interest in the proper administration of justice.
While the minority did not agree with the result arrived at by
the majority, this statement is consistent with the approach
adopted by the majority.
[35] In this context, to force the Crown to proceed on the
same affidavit at the new hearing would undermine this court's
order that a new hearing be held on evidence that complied with
rule 4.06(2) and would not take into account the collective
interest in having a hearing on its merits. On the other hand,
allowing the Crown free rein to allege facts not alleged in the
original application, and to thereby better its case, would not
be fair to the applicants. Allowing the Crown to present first-
hand evidence of the facts already alleged is a fair
compromise because it reflects the fact that, at the time of
the original application, the law regarding hearsay and
forfeiture applications was unclear and could not offer proper
guidance to applicants. The balance struck by the application
appeal judge was appropriate. His order satisfies the
majority's and minority's requirement in Thomas that an
ancillary order should be consonant with an appeal court's
disposition and should balance the interests of both the
accused and society. I would order that the Crown be permitted
to file a fresh affidavit that complies with rule 4.06(2) but
that it not be permitted to allege new facts.
- Did the Crown show that the R.C.M.P. officers had
reasonable and probable grounds to believe that a crime
had been committed, making the seizure lawful?
[36] This issue was argued before both the application judge
and the application appeal judge, although neither judge
decided it. Having regard to my conclusion above, it is not
necessary for me to decide this issue.
[37] I would, however, offer one further comment. While the
tracker dog evidence in this case was probably put forward as
part of the narrative, I would caution that this court has
recently commented on the admissibility of tracker dog evidence
in R. v. Holmes (2002), 2002 45114 (ON CA), 62 O.R. (3d) 146, [2002] O.J. No. 4178
(C.A.), at para. 37. In that case, Rosenberg J.A. approved
the test adopted by Wein J. in R. v. Klymchuk, [2000] O.J.
4435, [2000] O.T.C. 991 (S.C.J.) from Freckleton and Selby,
Expert Evidence, c. 16(a), "Tracker Dog Evidence" (Sydney: Law
Book Co., 1993) at para. 16a.20. That test requires that before
tracker dog evidence is admitted against an accused person,
there must be evidence [page198] about the reliability of the
dog breed and about the particular skills and reliability of
the dog as a tracker. The handler must explain the process,
sequence, and outcome of the tracking. In the case before us,
no such evidence was provided.
[38] Assuming, without deciding, that the seizure of the
money was unlawful, I will now deal with the provincial
judge's decision to order the return of the money.
- Should the justice of the peace have ordered that the
money be returned to the appellants?
[39] In R. v. Mac, supra, at para. 10, the court held that
where there is no warrant or statutory authority for the
seizure of money, and no reasonable and probable grounds for
believing that a crime has been committed or that the money was
the fruit of a crime or material evidence of it, there is no
authority to seize or retain the money.
[40] The Crown makes two submissions in relation to this
court's decision in Mac. They are: firstly, that the order for
the return of the money was obiter and ought not to be relied
upon and, secondly, that Mac is in conflict with the more
recent decision of the Supreme Court in Raponi, supra.
[41] In Raponi, the appellant brought a bag filled with
nearly $35,000 in cash to obtain the release of his client on
bail. Although the police did not have a warrant to seize the
money nor any reasonable and probable grounds to do so, they
confiscated the bag as "offence-related property" pursuant to
s. 11 of the Controlled Drugs and Substances Act, S.C. 1996,
c. 19. With the three-month detention limit for items detained
by the Crown approaching, the police applied to a provincial
judge for an extension to retain the money under s. 490(2). The
provincial judge dismissed the Crown's application and ordered
the money returned to the appellant on the basis that the
Crown's possession of it was unlawful, as it had been
improperly seized. The Supreme Court agreed with the provincial
judge that the seizure of the money was unlawful. However, the
Supreme Court held that the provincial court judge could not
order the return of the money on the grounds of unlawful
seizure under s. 490(2) of the Code because, under that
provision, the only question to be considered is whether
continued detention is required by a proceeding that has been
instituted or by an investigation.
[42] The Supreme Court expressly left open for determination
the question of whether a provincial judge has jurisdiction
pursuant to s. 490(9) to order the return of goods unlawfully
seized. In leaving the question open, Raponi did not overrule
Mac. [page199] However, in Raponi, the Supreme Court also made
it clear that the return of the money does not automatically
follow when the Crown fails to meet the burden of proof
required at a forfeiture hearing. The Supreme Court observed at
para. 28 that:
Section 490, while purporting to provide a complete scheme
for dealing with property seized in connection with crime,
does not tell us what happens when the seizure fails to
comply with the requirement of reasonable grounds and is
hence unlawful.
The court held at para. 33 that Raponi's argument that the
money unlawfully seized could be ordered to be returned under
some implied power to return goods unlawfully seized ignored
the fact that:
[B]efore a judge can make any order, there must be a legal
substratum or vehicle to support the order. The legal vehicle
for the return of goods unlawfully taken or held is the civil
action of replevin before the Court of Queen's Bench.
Another vehicle might be a Charter application to a judge of
the Court of Queen's Bench. Yet other possibilities may
exist. The point is simply that a claim must be grounded in a
legal cause of action that permits the judge to grant a
remedy.
[43] Inasmuch as the Supreme Court held in Raponi that it was
dealing with an application under s. 490(2), its comments
concerning s. 490(9) are arguably obiter. Nonetheless, they are
binding on this court. In R. v. Miller (1982), 1982 1810 (ON CA), 39 O.R. (2d) 41,
1982 1810 (ON CA), 141 D.L.R. (3d) 330 (C.A.), at p. 48 O.R., Cory J.A. stated:
[I]n Ontario, it has always been understood that the obiter
remarks of the majority of the Supreme Court of Canada
constitute a considered opinion that should be followed by
the courts of this Province: See also Sellars v. The Queen,
1980 166 (SCC), [1980] 1 S.C.R. 527.
Accordingly, even if the money was unlawfully seized, it would
appear that the money ought not to be automatically returned.
[44] What cause of action or source of law would support the
making of an order for the return of the money? The most
obvious is an application to the justice of the peace under s.
490(7) by the persons from whom the property has been seized
for an order under para. 490(9)(c) that the money be returned
to them because their possession was lawful. Section 490(7)
would appear to apply whether the seizure was lawful or
unlawful. This subsection would, however, place the onus on the
applicants to prove that their possession was lawful.
[45] In addition, in Raponi, the court held that an action in
replevin for the return of money unlawfully seized could be
brought before a superior court judge.
[46] Alternatively, an application under the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982,
[page200] being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 may be possible. In Raponi, the Crown conceded that
the Charter applies to s. 490(9) applications on the basis of
the Alberta Court of Appeal's decision in R. v. Daley, [2001]
A.J. No. 815, 2001 ABCA 155, 94 Alta. L.R. (3d) 238 (C.A.). In Daley, the
court held that although the seizure of the money from the
appellant was unlawful and his rights had been violated under
s. 8 of the Charter, the evidence should have been admitted in
a forfeiture application under s. 490. The court did so on the
basis that, because the appellant was not charged with an
offence and the appellant's liberty interest was not at risk,
the factors involved in the s. 24(2) analysis did not apply
with the same force. At para. 37, the court stated:
The notion of self-incriminating or conscriptive evidence
makes little sense in this proceeding where there are no
charges, no accused and no risk of conviction. While this
does not exclude the possibility of some remedy for a Charter
violation, the application of the Collins test to exclude
evidence and particularly, the rationale for that remedy is
blunted. The Supreme Court of Canada's reasoning justifies
exclusion because self-incrimination violates the right to a
fair trial, which presumptively brings the administration of
justice into disrepute. Such reasoning cannot carry the same
weight where self-incrimination is not an issue.
[47] The court in Daley also held that because there was no
charge, no accused and no trial, the question of whether the
administration of justice would be brought into disrepute by
the admission of the evidence could not be decided on the basis
of trial fairness alone. Based on the affidavit evidence before
the court, the court held it was in as good a position as the
court at first instance to complete the Collins analysis, and
the court ultimately admitted the evidence.
[48] As a result of the Crown's concession in Raponi that
the Charter applied, the Supreme Court, at para. 30, did not
foreclose the possibility that in an appropriate case a
provincial court judge acting under s. 490(9) might be a court
of competent jurisdiction and be able to grant remedies under
ss. 24(1) and (2) of the Charter.
[49] Having regard to the decision of the Supreme Court in R.
v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J. No.
79, a strong case can be made that a justice of the peace
acting under s. 490(9) is a court of competent jurisdiction. In
that case, the Supreme Court held that a justice of the peace
presiding at a trial under the Provincial Offences Act, R.S.O.
1990, c. P.33 is a court of competent jurisdiction and has the
power to order legal costs against the Crown for a Charter
breach. Where no specific grant of legislative power exists, a
functional and structural [page201] approach must be used. On
the one hand, courts should strive to give effect to the
desirability of promoting direct and early access to Charter
remedies. On the other hand, courts must show deference to the
wishes of Parliament and the legislature if the grant to a
statutory body has been expressly or impliedly withheld. To
determine whether a grant of legislative power has been made,
courts are to have regard to the function the legislature has
asked the tribunal to perform, and the powers and processes
with which it has furnished the tribunal.
[50] Applying this approach to s. 490(9) suggests that
justices of the peace, applying the same standard of proof at a
s. 490(9) hearing as in a criminal proceeding, are courts of
competent jurisdiction to issue a Charter remedy, where, as
here, the remedy relates to the conduct of the hearing before
them. For example, if the court found the police officers had
no reasonable and probable grounds to seize the money, and
that, as a result, there was a Charter violation under s. 8,
the court would have to decide whether to exclude the evidence
of not just the money, but the information about the amount of
money found and the denominations of bills, essential aspects
for a determination of lawfulness of possession under
s. 24(2). The court could also decide whether to order the
return of the money under s. 24(1). Holding that Parliament has
impliedly recognized justices of the peace presiding at
s. 490(9) hearings as courts of competent jurisdiction would
give them a full complement of remed ies to fill the gap in
statutory jurisdiction under s. 490(9). It would also ensure
that the remedy that ultimately flows is both timely and
appropriate.
[51] Holding that there is a grant of an implied power to
order the return of the money as a Charter remedy under s.
490(9) does no violence to the wording of the paragraph.
Indeed, as indicated in the earlier discussion of the statutory
scheme, a person from whom property has been seized may bring
an application pursuant to s. 490(7) and ask a justice to order
the return of the property under 490(9)(c) upon proof that
their possession is "lawful". Insofar as jurisdiction is
concerned, it would make little sense for Parliament to empower
a justice of the peace to order the return of money to a person
whose possession of it was lawful, yet leave the justice who
wishes to do so without jurisdiction to exercise the discretion
to order a remedy if the seizure was unlawful. Thus, assuming
that the Charter applies, I would hold that a justice acting
under s. 490(9) is a court of competent jurisdiction and, if a
Charter application is brought, has the implied power to order
the return of the money under s. 24(1). [page202]
[52] As I read the existing jurisprudence, therefore, in
addition to an action in replevin before a superior court
judge, or an application pursuant to s. 490(7) before a justice
of the peace, West, Beavies and Johnson could in response to
the Crown's application under s. 490(9) bring an application
under s. 8 of the Charter and seek a declaration for the return
of the money under s. 24(1) from a justice of the peace.
Disposition
[53] In the result, if leave is needed, I would grant leave
to appeal, and uphold the order of the application appeal judge
allowing the appeal from the justice at first instance and
order that a new hearing be held. Contrary to the application
appeal judge's ruling, I would, however, hold that on an
application for forfeiture the Crown is obliged to comply with
rule 4.06(2) of the Criminal Rules. I would also order that the
Crown be permitted to file a fresh affidavit that complies with
the rules. However, the Crown is not permitted to introduce new
evidence in the sense of alleging new facts not contained in
the original affidavits. I would further order that if, at the
new hearing, the seizure of the funds is found to be unlawful,
the justice of the peace has no inherent jurisdiction to order
that the money automatically be returned to the respondents.
Rather, the respondents must initiate some proceeding for the
return of the property seized. In my opinion, the appellants
could, if they wished to do so, bring a cross-application
alleging that there were no reasonable and probable grounds to
seize the money and that their rights were violated under s. 8
of the Charter, thereby requesting an order for the return of
the money under s. 24(1) from the justice of the peace.
Costs
[54] The appellants seek their costs on a full indemnity
basis throughout. The discretion of a court to order costs in a
criminal proceeding is exercised only in rare circumstances.
Although there are no accused in this case, the proceedings are
under the Criminal Code. There is nothing in this case that
merits a costs sanction against the Crown. Accordingly, the
appellants' request for costs is dismissed.
Appeal dismissed.
APPENDIX A
For ease of reference, I have summarized the paragraphs of
Mauti's affidavit below. In his submissions to the justice of
the [page203] peace, counsel for the appellants states at p.
234 of the Appeal Book that he has listed the paragraphs that
ought to be excluded on the basis of hearsay. He says they are
paras. 11 to 30, 32 to 56, and 78 to 82.
SUBJECT: Mauti's qualifications
PARAS. 1-3
DETAILS
No objection is taken.
SUBJECT: Overview of the investigation
PARAS. 4-6
DETAILS
These paragraphs state that Mauti is conducting a continuing
proceeds of crime investigation in relation to West, Beavies and
Johnson. The paragraphs give the details of their arrival at the
airport and the amounts of money of which each was possessed,
including the denominations of the bills found. Paragraph 6 of
the affidavit states:
I am unaware of any person(s) with a lawful interest in the
money, which is sought to be forfeited. I believe the money
seized from James Lee WEST, Carl Allen BEAVIES and Aldon Tory
JOHNSON is proceeds of crime and offence related property.
The sections pursuant to which the appellants were investigated
are then listed in paragraph 7.
The appellants did not object to these paragraphs, including
paragraph 6.
[page204]
SUBJECT: Grounds relied upon in support of the application
PARAS. 8-10
DETAILS
These paragraphs list the government agencies whose records were
reviewed for the purposes of the investigation, and describes
the function of the records. For example, the records of the
Personal Property Security Registration and the records of the
Office of the Superintendent of Bankruptcy Canada are discussed.
In addition, police information reviewed is also listed, such as
the Canadian Police Information Centre reports and the
R.C.M.P.'s Currency Recording and Tracking System.
The appellants did not object to these paragraphs.
SUBJECT: Grounds for belief
PARAS. 11-13
DETAILS
These paragraphs describe the information Mauti received
concerning the actions of the police dog, and the observations
of the R.C.M.P. officers at the airport respecting the alleged
nervousness of the appellants.
The appellants object to the admissibility of these paragraphs
and to paragraphs 11-30 which are as follows:
SUBJECT: Investigation of Aldon Troy Johnson
PARAS. 14-21
DETAILS
These paragraphs describe the questions Const. Kennedy asked
Johnson and his responses, as well as the money in his
possession.
SUBJECT: Investigation of James Lee West
PARAS. 22-24
DETAILS
These paragraphs describe the questions Const. Zeppetelli asked
West and his responses, as well as the money in his possession.
[page205]
SUBJECT: Investigation of Carl Allan Beavies
PARAS. 25-30
DETAILS
These paragraphs describe the questions
Const. Horne asked Beavies and his responses, as well as the
money in his possession.
SUBJECT: The denominations of the money found
PARAS. 31
DETAILS
Paragraph 31 is not objected to. It states:
The presence of $50 and $100 Canadian denomination notes would
substantially reduce the bulk of the money being transported.
The $20 note is the denomination that is usually associated to
street level trafficking. It takes a great deal of effort to
take large amounts of $20 notes and convert them into either
$100 or $50 notes without drawing the suspicions of Canadian
financial institutions.
SUBJECT: Information of Const. Mary Horne
PARAS. 32-33
DETAILS
These paragraphs state that Mauti had spoken to Const. Pettipas
who had spoken to Horne concerning her telephone conversation
with a man named Paul Yue. Yue allegedly told Horne that he
operated a car brokerage in Halifax, that the appellants were
old friends of his, that the money in their possession was his,
and that he had sent them to Toronto to buy vehicles for him
for resale.
These paragraphs were objected to. [page206]
SUBJECT: Information of Corporal Michael Cowley
PARAS. 34
DETAILS
Corporal Cowley is a member of the Integrated Proceeds of Crime
Section of the R.C.M.P. in Vancouver and is a recognized expert
on money laundering. Mauti stated that Cowley advised him that
the denominations of the money seized were consistent with the
breakdown of money exchanged on a daily basis for individuals
laundering drug money, that it is highly unusual for such sums
of cash to be transported by persons not associated with
security companies, and that such transport is consistent with
illicit purposes such as drug couriering.
This paragraph was objected to.
SUBJECT: Criminal history
PARAS. 35-48
DETAILS
Mauti detailed the results of Const. Pettipas' CPIC check of the
appellants and of Yue. In addition, Mauti stated he was advised
by Sgt. Spurr of the R.C.M.P. that the appellants were arrested
in a drug investigation in July 2002 and they told the court at
their bail hearing that they were unemployed. Spurr further
advised Mauti that Beavies had pled guilty to two counts of
trafficking in cocaine and of possession of cocaine for the
purposes of trafficking. He received a sentence of seven and a
half years. He attached a copy of the newspaper report of the
crime to his affidavit.
These paragraphs were objected to. [page207]
SUBJECT: Halifax investigation
PARAS. 49-51
DETAILS
Spurr also advised Mauti that a corporate search revealed that
Spotlite Auto is a partnership company and that Paul Yue's
mother is the only person listed as a partner in the business.
The property is registered to Yue's parents.
These paragraphs were objected to.
SUBJECT: Interview of Lesley Yue and Anthony Yue
PARAS. 52-53
DETAILS
Mauti stated that Yue's parents told Sgt. Spurr that the
business was unsuccessful, never having acquired or sold a
vehicle, and it was no longer functioning.
These paragraphs were objected to.
SUBJECT: Interview of Paul Yue
PARAS. 54
DETAILS
Mauti stated that Paul Yue told Sgt. Spurr that the business was
a functioning business selling about 30 vehicles a month. Yue
told Spur that he had given $39,500 to Beavies in the presence
of West and Johnson to buy cars for resale, of which $12,500 was
his own money and the rest was borrowed from unidentified
friends. The remaining $25,945 was not from any source that Yue
could identify.
This paragraph was objected to.
SUBJECT: Ontario Lottery Corporation and Office of the
Superintendent of Bankruptcy Canada
PARAS. 55-56
DETAILS
Mauti reported that Carrie Keenan, an investigator at the
Ontario Lottery Corporation, advised there was no record of any
of the appellants winning the lottery. Lise Lafleur of the
Office of the Superintendent of Bankruptcy advised that the
appellants did not appear in any of their public records, nor
did Yue or Spotlite Auto.
The appellants objected to the admissibility of these
paragraphs. [page208]
SUBJECT: Income tax information and GST payments for the
appellants, Paul Yue and Spotlite Auto
PARAS. 57-70
DETAILS
No objection is taken to the admissibility of this information.
SUBJECT: Belief that large sums of cash are the proceeds of
crime; the definition of money laundering; and the recognized
states of money laundering: placement, layering and integration
PARAS. 71-77
DETAILS
These paragraphs express the expert opinion of Mauti and no
objection is taken to them.
SUBJECT: Purpose of the cash
PARAS. 78-82
DETAILS
Mauti commented on the explanations proffered by the appellants
for the cash they carried, the resulting investigation into
their stories and the changes in their stories. Paragraph 82
states that Gordon Yates of the Seized Property Management
Directorate of Public Works and Government Services Canada
advises persons who buy cars at public auction that they have
three days to pay for the vehicle and that auction companies
accept debit card, credit card and certified cheques, as well as
cash in payment.
These paragraphs are objected to.
SUBJECT: Basis for the order sought
PARAS. 83-84
DETAILS
These paragraphs contain the opinion of Mauti that the funds
were not acquired from legitimate sources of income based on the
inconsistencies in the statements of the appellants, the
information in the affidavit, and Mauti's experience.
No objection is taken to these paragraphs as being hearsay.
[page209]
@1@HCRIM,