Court File and Parties

Date: August 18, 2017

Information No.: 16-9257

Ontario Court of Justice

In The Matter of an Application for the return of property seized as offence-related property

Between:

Abraham Boldt

— and —

Her Majesty the Queen

Before: Justice R.A. Marion

Heard: July 14, 2017

Counsel:

• Evan Weber, for the Accused (Applicant)
• Myfanwy Smith, for the Crown (Respondent)

Ruling on Application Under Section 490 of the Criminal Code of Canada

MARION J.:

[1] The Applicant seeks an Order returning property seized from him as offence-related property, namely, a 2015 Ford pick-up motor vehicle (hereinafter referred to as "the vehicle").

[2] On July 8, 2016, the Applicant, Abraham Boldt was charged with trafficking a controlled substance, possession of a controlled substance for the purpose of trafficking, and possession of a controlled substance contrary to sections 5(1), 5(2), 4(1) of the Controlled Drugs and Substances Act (hereinafter referred to as the "CDSA").

[3] At the time of the Applicant's arrest, his vehicle was seized and impounded by police. The vehicle is a 2015 Ford pick-up truck bearing Ontario licence plate AD 27820. The Applicant is the registered owner of the vehicle.

[4] A detention order was made on July 13, 2016 for detention of the vehicle "until the completion of all proceedings".

[5] On August the 9th, 2016, a management order with respect to the Applicant's vehicle and the vehicle of a co-accused was granted by Justice G.A. Campbell of the Ontario Court of Justice requiring the Minister of Public Works and Government Services Canada to manage the property until further court order. The management order includes a provision that the Applicant may apply on three clear days' notice being given to the Attorney General of Canada to set aside or vary the order.

[6] At the time of his arrest on July 8, 2016, Mr. Boldt was in the Ford F-50 with a co-accused in which Canadian currency in the amount of $4,400.00 and 51.87 grams of a white powdery substance alleged to be cocaine were found.

[7] Mr. Boldt is charged with a designated substance offence as defined in section 2 of the CDSA.

[8] According to s. 16(1) of the CDSA, a court may order the forfeiture of any offence-related property if a person is convicted of a designated substance offence and if the court is satisfied that the property constitutes offence-related property and that the designated offence for which the person is convicted relates to the property.

[9] Offence-related property is defined in section 2 of the CDSA as:

…with the exception of a controlled substance, any property, within or outside Canada,

a) by means or in respect of which a designated substance offence is committed;

b) that is used in any manner in connection with the commission of a designated substance offence, or

c) that is intended for use for the purpose of controlling a designated offence.

[10] I am satisfied that the vehicle is offence-related property based on the affidavit of Constable Jennifer Ashbury dated August 5, 2016, as it is alleged that the vehicle was used to transport drugs or money to attend a meeting to conduct a drug transaction.

[11] A seized item can only be released under s. 490(c) of the Criminal Code if it is no longer required for any purpose mentioned in s. 490(1) or s. 490(4). The sections read as follows:

490(1) Detention of things seized – Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detail the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

490(4) When accused ordered to stand trial – When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk and disposed of as the court directs.

[12] The Applicant submits that the vehicle is not required for the purpose of a preliminary inquiry, trial or "other proceeding" as referred to in s. 490(1) or required for any purpose mentioned in s. 490(4).

[13] Proceedings in this matter have not been concluded. It has been confirmed by the Attorney General of Canada that forfeiture of the vehicle will be sought upon conviction of Mr. Boldt of the designated substance offence(s) for which he is charged.

[14] A forfeiture hearing which would follow a conviction is a "proceeding" as described in s. 490(1) of the Criminal Code.[1]

[15] The Applicant submits that the court has jurisdiction to release the vehicle pursuant to s. 490(9) which reads as follows:

490(9) Disposal of things seized - 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 sub-section (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 any-thing 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 dis-posed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

[16] The detention order made on the 27th day of July, 2016 provides that detention is for a date not more than three months from the date of seizure or, if charges have been laid before that date, until the completion of all proceedings.

[17] Charges were laid within three months of the date of seizure and the expiry period as set out in the detention order has not expired.

[18] I have no jurisdiction to order release of seized property under s. 490(9) where the period set out in a detention order has not expired and the continued detention of the property seized is required for any purpose set out in s. 490(1) which includes a forfeiture hearing.

[19] To return property which is subject to forfeiture to an accused, who is otherwise entitled to its possession, prior to the conclusion of proceedings would effectively defeat the legislative scheme providing for forfeiture of offence-related property.

[20] The Application is dismissed.

Released: August 18, 2017

Original signed and released

Ronald A. Marion Justice

Footnotes

[1] R. v. Nikitczuk, 2009 ONSC 7249 and R. v. Dawson, 2013 ONSC 4706