Court Information

Ontario Court of Justice

Date: May 8, 2020

Between:

Her Majesty the Queen

— and —

Joshua Soares

Before: Justice A. T. McKay

Heard by Audio: May 2, 2020

Ruling on Application for the Return of Property Seized and Detained

Released: May 8, 2020

Counsel

S. McNaughton — counsel for the Crown

B. Ritter — counsel for Joshua Soares

Decision

McKAY J.:

Background and Charges

[1] Mr. Soares was in a relationship with Jasmin Whitelaw. Apparently, he perceived the relationship differently than Ms. Whitelaw. On April 15, 2020, Ms. Whitelaw was out for a drive with a male friend. That led to contact with Mr. Soares. As a result of the contact, Mr. Soares is charged with dangerous driving, two counts of criminal harassment, and common assault. The allegations from the Crown brief are summarized below.

[2] Mr. Soares tracked Ms. Whitelaw and her friend to a particular location. He drove extremely aggressively while pursuing them and attempting to get them to pull over. He was eventually successful in doing that and approached the vehicle trying to get at the male friend. The two vehicles were blocking the roadway and another vehicle approached. Mr. Soares moved his vehicle to allow the approaching vehicle to pass. Ms. Whitelaw used that opportunity to flee in her vehicle. Mr. Soares continued to pursue her in his vehicle, driving in an allegedly dangerous fashion. When interviewed, Ms. Whitelaw also made allegations of a historic assault at the hands of Mr. Soares.

Seizure and Detention of Vehicle

[3] In addition to laying the charges, the investigating officer seized Mr. Soares' motor vehicle pursuant to section 217(4) of the Highway Traffic Act. The Crown subsequently decided that if it obtains convictions on the dangerous driving and/or criminal harassment charges, the Crown will bring an application for forfeiture of the motor vehicle as offence-related property. On April 28, 2020 a Justice of the Peace made an order of detention related to the motor vehicle pursuant to section 490(1) of the Code. The detention period is until the completion of all proceedings.

Legal Framework

[4] The Criminal Code defines offence-related property broadly:

offence-related property means any property, within or outside Canada,

(a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed,

(b) that is used in any manner in connection with the commission of such an offence, or

(c) that is intended to be used for committing such an offence.

[5] The ultimate issue of whether property will be forfeited is dealt with under s. 490.1 of the Code. It provides that where a person is convicted or discharged of an indictable offence and the Crown satisfies the court, on a balance of probabilities, that offence-related property is related to the commission of the offence, the court shall order forfeiture of the property.

[6] Section 490 of the Code sets out a comprehensive procedural scheme. Section 490(1) requires the return of seized items to the lawful owner, unless the prosecutor "satisfies the justice that the detention of the item is required for purposes of the investigation, or a preliminary inquiry, trial or other proceeding…". A line of Ontario cases have found that a potential forfeiture hearing is an "other proceeding" (see R. v. Nikitczuk, [2009] O.J. No. 2438; R. v. Alchin, [2007] O.J. No. 4930; R. v. Buller, [2009] O.J. No. 6403; R. v. Boldt, [2017] O.J. No. 4926).

[7] Subsection 490(7) provides that a person from whom anything has been seized may, after the expiration of the periods of detention ordered under s. 490(1), bring an application for its return. Subsection 490(8) provides that the court may allow an application to be made under subsection (7) prior to the expiration of the time frame referred to therein if the judge is satisfied that hardship will result unless the application is so allowed.

Hardship and Timing of Applications

[8] There is a line of cases which have held that the hardship provisions of section 490(8) simply relate to the timing of when an application can be brought, potentially allowing the application to be brought prior to the expiration of the detention period in the event of hardship. For example, at paragraph 18 of R. v. Lu, [2003] O.J. No. 4983, the court stated the following:

In my view the applicant has misconstrued s. 490(8) of the Code. The issue of hardship under that section only arises in the context of when an application can be brought. The section provides that if a judge is satisfied that it would cause hardship to require an applicant under s. 490(7) to have to wait until the detention period had elapsed to bring the application permission may be granted for the bringing of such application before the expiry of the periods of detention. That is the only relevance of hardship to a s. 490(8) application. The merits of the application still have to be decided pursuant to s. 490(9).

[9] The Crown submits that hardship does not create a right of return or the jurisdiction to return a detained item.

Grounds for Return Under Section 490(9)

[10] Section 490(9) appears to only contemplate return of the item in two situations. The first situation involves the period of detention having expired, and proceedings not having been instituted. That is clearly not applicable in this scenario. The second situation involves a scenario where the period of detention has not expired, but the item is not needed for any of the purposes outlined in subsections 1 or 4; specifically an investigation, preliminary inquiry, trial or other proceeding.

Applicant's Position

[11] Mr. Soares brought this application for return of the vehicle. His position can be summarized as follows. There is no reason to detain the vehicle which is related to the investigation or for the purpose of trial. The issue is whether detention of the vehicle is necessary for an anticipated forfeiture hearing. He submits that case law related to detention of vehicles arising from CDSA charges can be distinguished, given the fact that section 16 of the CDSA provides for presumptive forfeiture if there is a conviction. Under the Code, there would be discretion on the part of the court as to whether to order forfeiture. The vehicle itself is not needed for the forfeiture hearing. Mr. Soares works outside of the jurisdiction and the loss of his vehicle means that he has no means to travel to work and will, likely, lose his job. That is a hardship. His position is that the court could order return of the motor vehicle to him pending the forfeiture hearing by requiring him to enter into a recognizance to provide security pursuant to section 217(4) of the Highway Traffic Act. The defence suggests that the recognizance should require him to make his vehicle available for the forfeiture hearing and should prohibit him from selling or disposing of the vehicle pending the forfeiture hearing. The Crown submits that s. 217 of the HTA is subsumed by s. 490 of the Code as the Crown has determined that it wants to bring the forfeiture application.

Vehicle Details and Equity

[12] Mr. Soares is the registered owner of the vehicle. He purchased it in February 2020 for $20,000. It currently has a retail value of $16,625. It has a lien against it of a total of $17,518, so there is negative equity in the vehicle. The Crown proposes to return it to the lien holder if it successfully obtains a forfeiture order.

Discretion at Sentencing

[13] Clearly, at a sentencing hearing, the sentencing court will have the discretion to grant relief from forfeiture of the motor vehicle. As stated at paragraph 24 of R. v. Allaudin, 2019 ONCJ 344:

A forfeiture application is separate from the sentencing process and the regime set out in the Criminal Code constitutes a "complete code." While forfeiture can be punitive, "it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated ... offences": see R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762 (S.C.C.) at paras. 22, 47-48. Judges have discretion whether or not to grant relief from forfeiture: see R. v. Trac, at para. 96, 2013 ONCA 246 (Ont. C.A.) at para. 96. The question is whether the court is satisfied that the impact of an order of forfeiture "would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence."

Jurisdiction to Entertain Application

[14] It is entirely possible that the applicant could succeed in persuading a sentencing judge to grant relief from forfeiture on these facts. However, quite apart from the merits of the application, the first issue is whether this court has any jurisdiction to return the motor vehicle at this point in the proceedings. The Crown submits that the court lacks the jurisdiction to do so. A line of cases was cited in support of that position. Relevant authorities include R. v. Boldt, supra, R. v. Lu, supra, R. v. Nikitczuk, supra, and R. v. Dawson, [2013] O.J. No. 3354.

[15] The applicant relies upon two BC cases, R. v. Flynn, [2011] BCJ No. 2410 and R. v. Felix, [1993] BCJ No. 1870. The applicant also points to paragraphs 7 & 8 of R. v. Dawson, supra in support of the argument that it is the combination of section 490 of the Code and section 16 of the CDSA which together mandate forfeiture. That situation does not present itself in this case given the absence of CDSA charges.

Third Party Applications

[16] As pointed out by Durno J. in R. v. TO-Bargains Inc., [2015] O.J. No. 3654, the swearing of an Information cannot preclude an applicant from seeking the return of detained property. For example, an innocent third party whose property had been seized from a location related to an offence would not be precluded from bringing an application simply because charges had been laid against an accused.

Interplay Between Subsections

[17] The decision in TO-Bargains Inc. summarizes the interplay between the subsections as follows in paragraphs 51 through 55:

Where proceedings have been instituted, s.490(8) provides a mechanism whereby leave to bring an application under s.490(7) can be brought. Where an application is brought pursuant to s. 490(7) the applicant must show that hardship will result unless the application is allowed. This low threshold involves some evidence of negative financial repercussions. R. v. Nikitczuk, [2009] O.J. No. 2438 (Ont. S.C.J.).

Under s. 490(10) a separate procedure exists whereby a person, other than the person who may apply under s. 490(7), can apply "at any time" for the return of seized property that lawfully belongs to them. As the applicant submits, this procedure is available to third parties to the search which resulted in the seizure.

The onus is on the applicant to establish its lawful possession of the cash and that the funds will not be required for the preliminary inquiry, trial or other proceedings. R. v. Dawson, [2013] O.J. No. 3354 (Ont. S.C.J.); R. v. Alchin, [2007] O.J. No. 4930 (Ont. C.J.)

I am persuaded the onus is on a balance of probabilities…

Court's Jurisdiction and Analysis

[18] I find that the court does have jurisdiction to order the return of property which has been detained pursuant to the provisions of s. 490 of the Code. The difficulty for Mr. Soares is the difficulty in satisfying the onus. The definition of offence-related property is extremely broad, and the threshold for forfeiture is low. While the sentencing court has discretion to determine whether the impact of forfeiture would be disproportionate to the nature and gravity of the offence, it is not for this court to usurp the role of the sentencing court at this stage of the proceedings.

[19] While I am satisfied that the court has jurisdiction to entertain the application, I find that the vehicle is required for the purposes of an "other proceeding", specifically the anticipated forfeiture hearing if conviction is obtained. I conclude that s. 217 of the Highway Traffic Act is not an available basis to impose a recognizance once the Crown decides to pursue forfeiture under s. 490 of the Code. To release the vehicle at this point could defeat the statutory scheme created by s. 490 of the Code.

Disposition

[20] The application is dismissed.

Released: May 8, 2020

Justice A. T. McKay