Her Majesty the Queen v. Ugas Hassan, Nixon Lau and Toronto Suite Rentals Inc.
ONTARIO COURT OF JUSTICE
DATE: 2022 05 27 COURT FILE No.: Toronto 4817-998-22-70000274 4811-998-21-15004476
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
UGAS HASSAN and NIXON LAU and TORONTO SUITE RENTALS INC. Applicants
Before: Justice J. Bovard
Heard on: May 19, 2022 Ruling released orally on: May 25, 2022 Written Reasons for Ruling released on: May 27, 2022
Counsel: Mr. J. Spare .......................................................................................... counsel for the Crown Mr. M. G. Forte.............................................................................. counsel for the applicants
1These are the court’s reasons for its ruling on an application pursuant to s. 490 (9) (c) of the Criminal Code.
Introduction
2On August 11, 2021, the police stopped Mr. Hassan to investigate a drinking and driving offence. Mr. Hassan refused to provide a sample into an approved screening device. The police arrested him for that offence. Incident to the arrest they performed an inventory search of the car before it was towed from the scene.
3They found $43,390.00 in Canadian currency and $2.00 USD in various parts of the car. They also found a black leather Louis Vuitton pouch and hat. They seized this property in order to determine the lawful owner of it.
4On August 18, 2021, they made a report to a justice under s. 489.1 (1) (b) (ii) of the Criminal Code.
5The Justice, pursuant to s. 490 (1) (b), ordered that all the property be detained until November 11, 2021. When this order expired the police did not ask for an extension of it under the provisions of s. 490. Therefore, since then they have been holding the property without any order allowing them to do so.
6The applicants apply to the court under 490 (9) (c) of the Criminal Code for the return of the property.
The issue
7The issue is whether the applicants have proved on a balance of probabilities that they are the lawful owners of the property.
The evidence
8The defence submitted two affidavits.
9The first affidavit is from Mr. Hassan. He states that on August 11, 2021, the police arrested him for refusing to provide a breath sample into an approved screening device. They conducted and inventory search of his car and found $43,390 in Canadian currency.
10Mr. Hassan has worked for Mr. Nixon Lau and Toronto Suite Rentals since 2020. He still works for them. He told the police that the money belonged to Mr. Lau and to him. The police told him that they would keep it for safekeeping until the “rightful owner could be determined and claim the funds”.
11Mr. Hassan states in his affidavit that the money came from rents that he had collected from “multiple units owned by the company”. He said that it was not uncommon for him to have large sums of cash from the collection of rents. He then gives it to Mr. Lau, and it is “accounted for on the company books”.
12Mr. Hassan owns and operates a property management business. He stated that $3,290 in Canadian currency and $2.00 USD of the total seized by the police belonged to him. He earned it through his “employment and business operations”.
13In addition to the money, the police seized a black leather Louis Vuitton bag that Mr. Hassan says belongs to him.
14The second affidavit is from Mr. Nixon Lau. He states that he is the president of Toronto Suite Rentals. He has employed Mr. Hassan since 2020. Mr. Lau avers that he is the lawful owner of $40,100 of the money that the police seized. The money is from short term rental units that his company owns and operates throughout Toronto.
15Appendix E to his affidavit lists rent money that Mr. Hassan collected between July 26 and August 10, 2021. The exhibit names the addresses of eleven rental units and the sums of rent that Mr. Hassan collected. The total is $40,100.
16In addition to this evidence, the defence submitted as appendices to its application the following:
Appendix A – the police synopsis Appendix B – the police property report – money Appendix C – the police property report – general Appendix D – the report to a justice
Appendices A-C confirm what the allegations are against Mr. Hassan and provide a specific accounting of the property that the police seized from him.
Appendix D is the report that the police made to the justice concerning the property that they seized and the justice’s order that it be detained until November 11, 2021.
17That was the evidence for the defence.
18The Crown called several witnesses.
19Officer Saeed explained the “reconciliation” of the money that the police seized. She took pictures of how it was bundled, counted it, and made notes about it.
20She also explained that the black satchel that the police seized contained a pen, a key, candy, and $28.00.
21Officer Powrie testified that he pulled Mr. Hassan over, investigated him for a drinking and driving offence and eventually charged him with refusal to provide a breath sample into an approved screening device. He searched the car and found the money and the black bag.
22He said that he was concerned about who the lawful owner of the money was and whether Mr. Hassan was allowed to have it. He noted that the car was registered to a numbered company owned by Mr. Hassan.
23Officer Matthews testified that the police determined that the car had a different VIM number than the one originally issued to it. The police laid a charge regarding the car this year. They returned it to the owner, who was an insurance company.
24He said that the police did not make any further applications for the detention of the money after the first detention order expired. He said that the money is not relevant to any investigations before the court.
25That was all the evidence.
26The Crown argues that it is not clear who owns the money. The appendix of addresses and monetary amounts purporting to specify the rental income does not contain the names of the renters.
27In addition, the way that the money was bundled does not match the rental amounts in the appendix. Nor is there a bundle with the amount that Mr. Hassan says belongs to him. He would have had some of it for up to two weeks before the police arrested him. The way that Mr. Hassan stored the money was careless. Some of it was in an LCBO bag.
Analysis
28Section 490 of the Criminal Code is a “comprehensive scheme” that governs the procedure when seized items are brought before a justice. [1]
29In the case at bar, the defence applies under subsections 490 (7) and (9) (c) for the return of the property.
30Subsection (7) allows for an application to be made.
(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to
(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or
(b) a justice, in any other case,
for an order under paragraph (9)(c) that the thing seized be returned to the applicant.
31In the case at bar, subsection (b) applies. Section 2 of the Criminal Code defines “justice” as “a justice of the peace or a provincial court judge”.
32Subsection (9) provides for an order to be made in respect of the property.
(9) Subject to this or any other Act of Parliament, if
(a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or
(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,
33The only dispute in this case is whether Mr. Lau and Mr. Hassan are the lawful owners of the property. All other prerequisites to the application are conceded as being proven.
34I acknowledge that the fact that the car Mr. Hassan was driving had a VIM number that was not the original one, and that the original VIM number showed that it belonged to someone else is a suspicious circumstance. However, there is no evidence that this or anything else indicates unlawful possession of the property in question. It merely raises a suspicion.
35I also acknowledge that the way the money was stored and handled by Mr. Hassan had the earmarks of carelessness. And there was no bundle of money that amounted to the sum that Mr. Hassan said was his.
36The amount was rather large, and all the circumstances understandably raised the police officers’ suspicions about the origins of the property. However, there is no evidence or orders that justify its continued detention by the police except to determine the lawful owners of the property.
37The applicants’ evidence is unchallenged concerning ownership of the property. The Crown did not cross-examine the applicants on their affidavits. Their evidence was not impugned or undermined to the extent that I would not believe them. I do believe them.
Disposition
38After considering all the circumstances, the evidence, the law, and counsels’ submissions, I am satisfied on a balance of probabilities that the applicants are the lawful owners of the property seized by the police. Therefore, I grant the applicants’ application.
39If the applicants wish to provide a draft order, I will sign it forthwith.
Released: May 27, 2022 Signed: Justice J. Bovard
1Martin’s Criminal Code 2022, page 1000