DATE : October 14, 2021 ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— and —

KAYA MARSHALL Applicant

Before Justice John North Reasons for Judgment released on October 14, 2021

Monica Gharabaway................................................................................. counsel for the Crown Seth Weinstein...................................................................................... counsel for the Applicant

NORTH J.:

Introduction

[1] In this application, the Applicant seeks the return of a 2018 Jeep Grand Cherokee (Jeep) that was seized by the Toronto Police Service (TPS).

[2] The Crown alleges that “D.G.” was driving the Jeep when he assaulted a woman and caused her bodily harm. [1] The Crown also alleges that D.G. used the Jeep to transport the same woman to facilitate her exploitation in the sex trade. In February 2020, D.G. was arrested and charged with a number of offences. The police seized the Jeep. A Justice of the Peace ordered, pursuant to s. 490 of the Criminal Code, that the Jeep be detained until “the completion of the proceedings.”

[3] The Applicant argues that the Jeep should be returned to her as she has satisfied the requirements of s. 490(11) of the Criminal Code. The Applicant takes the position that the detention of the Jeep is not required for the purposes of any investigation, trial or other proceeding. The Applicant states that she is the lawful owner of the Jeep. According to the Applicant, she leased the Jeep to another person almost a year before D.G. was arrested. The Applicant asserts that she is completely innocent of any involvement in the offences allegedly committed by D.G. The Applicant was not charged with any offences in relation to this investigation.

[4] The Crown takes the position that the Jeep cannot be returned to the Applicant because it is required for the purposes of an investigation, D.G.’s trial and a potential forfeiture application. Crown counsel argues that the Jeep is offence-related property and states that the Crown will be seeking forfeiture of the Jeep if D.G. is convicted. D.G.’s trial is scheduled to commence in Superior Court on November 21, 2022. [2]

Evidence

The Crown’s Evidence

[5] The Crown did not file an affidavit or call a witness to give viva voce evidence on this application. On consent, the Crown filed certain materials.

[6] At approximately 2:00 a.m. on January 18, 2020, TPS officers responded to a 911 call. When officers arrived at the location provided by the caller, they found the Complainant, who had suffered obvious injuries to her head and face. The Complainant told police that she had been assaulted by D.G. An ambulance took the Complainant to a hospital.

[7] A security video from the Shangri La Hotel in Toronto, taken before the 911 call was made, shows a black Jeep Grand Cherokee driving up to the valet area. The Complainant and an unknown woman walked to this vehicle. It is alleged that D.G. was driving the Jeep. It is alleged that D.G. told the Complainant to sit in the front passenger seat. The video shows the Complainant entered the front passenger side of the Jeep. The unknown woman used the rear passenger side door to enter the Jeep. The video shows that the Jeep drove away from the hotel.

[8] It is alleged that, shortly after driving away from the hotel, D.G. struck the Complainant across her face and head about six times. The Complainant told police that she attempted to duck down to protect herself. The Complainant told police that her nose was bleeding and she could feel blood running down her neck.

[9] In an effort to escape, the Complainant opened the front passenger door while the Jeep was in motion. The Complainant was screaming. D.G. stopped the Jeep and tried to pull the Complainant back into the vehicle. The Complainant told police that, at the direction of D.G., the unknown woman used force to get the Complainant back into the Jeep. The Complainant was able to break free, and she ran away. D.G. chased the Complainant, but returned to the Jeep when people in the area became aware of the commotion. D.G. and the unknown female left the area in the Jeep.

[10] D.G. was arrested on February 10, 2020. He was charged with a number of offences. The identity of the unknown woman who was in the Jeep on January 18, 2020 remains unknown to the police.

[11] In February 2020, the police seized a Jeep that the Crown alleges D.G. was driving on January 18, 2020. The police obtained a search warrant for the Jeep. Police found blood on a door and around the front passenger side of the vehicle.

[12] Police submitted suspected blood samples taken from the Jeep to the Centre of Forensic Sciences (CFS). On May 14, 2020, Brian Peck, a forensic scientist with CFS, prepared a report based on these samples. Mr. Peck stated that the purpose of the examination was to “determine whether blood was present and/or whether DNA profiles could be developed from relevant items and whether [the Complainant] could be excluded as the source.” Mr. Peck wrote that the police submitted five swabs. Mr. Peck concluded that all samples were suitable for DNA comparison. The Complainant provided a sample of her DNA to the Ottawa Police Service. Mr. Peck concluded that the Complainant could not be excluded as the source of a DNA profile from blood found on the armrest. Mr. Peck also concluded that the DNA results from the armrest “are estimated to be greater than one trillion times more likely” to have originated from the Complainant than an unknown person unrelated to her.

[13] The Crown alleges that on February 12, 2020, D.G.’s lawyer told the officer-in-charge that D.G.’s girlfriend, M.S., was the owner of the Jeep. On this application, the Crown filed a Ministry of Transportation document which states that the Applicant was the lessor of the Jeep and M.S. was the lessee.

[14] The Complainant made a statement to the police on January 18, 2020. In this statement, the Complainant told police that she believes D.G. got the Jeep a couple of days earlier.

The Applicant’s Evidence

[15] The Applicant filed an affidavit in support of the application. The Crown did not cross-examine the Applicant.

[16] The Applicant purchased the Jeep from a dealership on December 9, 2018. The purchase price was $98,017. The Applicant financed the purchase over a period of 96 months, with monthly payments of $1288. According to the Applicant, not long after she purchased the Jeep, she found it difficult make the monthly payments. As a result, she leased the Jeep to a third party in March 2019. The Applicant states that her boyfriend made the arrangements for the lease. She did not know the lessee. The Applicant states that the lessee agreed to pay the full amount of the financing payments. These payments were provided to a broker, who forwarded the money by electronic transfer. According to the Applicant, the monthly payments from the lessee suddenly stopped in March, 2020. The Applicant remained the lawful owner of the Jeep throughout the time it was leased.

[17] The Applicant states that on April 1, 2020 she was notified by police that the Jeep had been seized as part of a criminal investigation. The Applicant was told that she was a “person of interest in relation to the investigation.” The officer-in-charge of the investigation asked the Applicant if she would make a statement to the police.

[18] According to the Applicant, the officer-in-charge on May 13, 2020 told the Applicant’s lawyer that the Applicant “ was no longer a person of interest and that [the Applicant] has been cleared of any involvement regarding this incident .” On that date, the officer-in-charge requested, once again, that the Applicant make herself available for a police interview.

[19] On September 16, 2020, the Applicant provided a statement to the officer-in-charge. According to the Applicant, she provided information to the officer-in-charge regarding the lease of the Jeep.

[20] The Applicant states that she had no knowledge of any illicit activity that may have occurred in the Jeep.

[21] According to the Applicant, she continued to make the monthly loan payments on the Jeep after it was seized by the police. The Applicant states she cannot afford to continue making these payments and they are causing her “extreme hardship.” She does not want to default on the loan, as she is concerned that defaulting would have a negative impact on her credit rating. The Applicant says that she is seeking to have the Jeep returned to her so she can sell it and pay off the car loan.

Legislation

[22] I will summarize the parts of the Criminal Code provisions that are relevant to this application.

[23] Section 490(1)(a) provides that where the lawful owner of anything that has been seized is known, the justice shall order it returned to that person, unless the prosecutor, or police officer 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.”

[24] In this case, as previously stated, a justice of the peace ordered the detention of the Jeep, pursuant to s. 490, until “the completion of all proceedings.”

[25] Section 490(10) allows the lawful owner of seized property (other than the person from whom the item was seized) to, at any time, apply for the return of the property.

[26] Section 490(11) provides that a justice, on an application under s. 490(10), shall order the thing seized to be returned to an applicant where the justice is satisfied that:

• the applicant is the lawful owner or lawfully entitled to possession of the thing seized; and
• the continued detention of the thing seized will not be required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding.

[27] Section 490.1(1)(a) provides that, subject to ss. 490.3 to 490.41, where a person is convicted of an indictable offence, and the Court is satisfied, 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. [3]

[28] Where the Crown “establishes a right of forfeiture under s. 490.1(1) or a judge chooses to exercise his discretion in favour of forfeiture under s. 490.1(2), the judge may still grant relief from forfeiture under ss. 490.3 to 490.41”: R. v. Trac, 2013 ONCA 246, at para. 95.

[29] Section 490.4(3) provides as follows:

“A court may order that all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) be returned to a person – other than a person who was charged with an indictable offence under this Act or the Corruption of Foreign Public Officials Act or a person who acquired title to or a right of possession of the property from such a person under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property – if the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of all or part of the property, and that the person appears innocent of any complicity in, or collusion in relation to, the offence.”

Issues

[30] There are three issues raised by this application.

[31] First, does this Court have jurisdiction to order the return of the Jeep?

[32] Second, if this Court has jurisdiction to order the return of the Jeep, what is the applicable test to determine if it should be returned?

[33] Third, has the Applicant satisfied the requirements of the applicable test?

(i) Does this Court have jurisdiction to order the return of the Jeep?

[34] The reference to “other proceeding” in s. 490(1)(a) “includes a forfeiture hearing at the conclusion of trial”: R. v. Alchin, 2007 ONCJ 589, at para. 14; R. v. Nikitczuk, 2009 ONSC 5900, at para. 15; R. v. Soares, 2020 ONCJ 243, at para. 6; R. v. Buller, 2009 ONCJ 781, at para. 11.

[35] Some authorities have held that a court lacks jurisdiction, prior to the end of a criminal trial, to order the return of a seized item where the Crown has indicated it intends to bring a forfeiture application: Nikitczuk, at para. 15; R. v. Boldt, 2017 ONCJ 630, at paras. 18-19. However, most recent decisions support the Applicant’s position that a court has jurisdiction to order the return of seized property after the Crown has expressed an intention to bring a forfeiture application.

[36] In Soares, at para. 18, McKay J. concluded that a court has jurisdiction to order the return of seized property under s. 490(7), even where the Crown has stated that there will be a forfeiture application in relation to that property.

[37] In R. v. TO-Bargains Inc., 2015 ONSC 4404, at paras. 48-53, Durno J. rejected the Crown’s argument that once charges have been laid a party has no recourse under s. 490 to attempt to have property returned until the trial and any forfeiture application is heard.

[38] In R. v. Mirian, 2015 ONSC 2848, at paras. 38-42, Fuerst J. held that a s. 490(10) application may be brought at any time by an innocent third party asserting lawful ownership in respect of property that was the subject of a restraint order.

[39] In R. v. Khan, 2017 ONSC 4871, Dunphy J. rejected the Crown’s argument that a court did not have jurisdiction to entertain a s. 490(10) application where the Crown expressed an intention to bring a forfeiture application. Dunphy J. concluded, at para. 4, as follows:

“Parliament did not confer unfettered jurisdiction upon the PPSC to seize and hold any and all property of an accused pending trial without having to justify the reasonableness of its potential forfeiture claim in any fashion whatsoever.”

[40] In Khan, at para. 26, Dunphy J. observed that when an application is made under s. 490(10) and (11), the justice must “ be satisfied ” that the applicant is the lawful owner or entitled to possession of the thing seized and that “proceedings have not been instituted in which the thing detained may be required.” [Emphasis in original.] Dunphy J. concluded, at para. 26, that the phrase “be satisfied” as used in s. 490(11) “suggests quite plainly that a factual inquiry into the question is to be made.” [Emphasis in original.] In rejecting the Crown’s argument that an intention by the Crown to bring a forfeiture application in the future is enough to deprive a court of jurisdiction to hear a s. 490(11) application, Dunphy J. stated as follows at paras. 31-32:

“Section 490(9) (or Section 490(11)(b) as the case may be) of the Criminal Code requires the judge and not the PPSC to be satisfied that property ‘may be required’. Where Parliament requires a judge to be satisfied of something, more than a rubber stamp is intended.

If I am to be satisfied that the property in question ‘may be required’ for future forfeiture proceedings, there must be some evidence before me from which I could conclude that this is so. The bare assertion of a future conditional intent coupled with an assurance of good faith does not meet this requirement. If I am required by Parliament to inquire into the future use of the property seized in a pending proceeding, I must necessarily have also been granted the jurisdiction to do so.” [Emphasis in original.]

[41] Dunphy J. rejected, at paras. 34 to 36, the Crown’s suggestion that the question of whether property may be required for a forfeiture hearing is exclusively a matter for a judge hearing a forfeiture application to decide. Dunphy J. concluded, at para. 35, that deciding a s. 490(11) application based solely on an assertion by the Crown of its intention to bring a forfeiture application “without the capacity to assess the grounds would gut the provisions of s. 490 of the Criminal Code of any meaning at all.”

[42] If the law were as suggested by the Crown, where a car was stolen from an innocent third party and that car was subsequently used by another person to commit an indictable offence, the owner of the car would have to wait until the end of the accused person’s criminal trial to attempt to get his or her car returned if the Crown took the position that it would be bringing a forfeiture application – even if the Crown was aware that the owner was an innocent third party and the car was not required for any of the other purposes mentioned in s. 490(1)(a). With respect, the scope of s. 490(10) must be broader than contended by the Crown.

[43] I agree with the reasoning in Soares, TO-Bargains, Mirian and Khan on the jurisdictional issue. The possibility that there could be a forfeiture application does not mean that property which is the subject of a detention order cannot be returned to an innocent third party who is the lawful owner. The argument that a court has no jurisdiction to order a return of property in these or similar circumstances “would seem to make little sense”, because it would mean that in any case where a detention order or a restraint order is granted, an innocent third party with a lawful interest in the property would have no ability to apply for its return before the end of the trial against the person charged: See Mirian, at para. 38; TO-Bargains, at para. 47.

[44] I have concluded that this Court has jurisdiction, pursuant to ss. 490(10) and (11), to order the return of the Jeep.

(ii) What is the applicable test to determine if the Jeep should be returned?

[45] In TO-Bargains, at paras. 53-55, Durno J. concluded that on s. 490(10) application an applicant has the onus, on a balance of probabilities, to establish its lawful possession of the seized property and that the seized property will not be required for a preliminary inquiry, trial or other proceeding.

[46] In Khan, at para. 36, Dunphy J. concluded that it was not necessary in the circumstances of that case to decide “what depth of inquiry is required in order to be satisfied that seized property may be required for a proceeding that has been instituted.” Dunphy J. held, at para. 36, to conclude on a s. 490(10) application that the seized property is “offence-related property” there “must at a minimum be evidence sufficient to satisfy the judge hearing the application that the claim has a reasonable foundation.”

[47] I agree with this conclusion. While it is important that a judge hearing a s. 490(10) application not usurp the role of a judge on a potential future forfeiture application by prematurely deciding whether property should be subject to forfeiture, there must be some evidence to satisfy a judge hearing a s. 490(10) application that a potential forfeiture application by the Crown could be successful.

[48] In this case, a judge hearing a forfeiture application following conviction of at least one of the offences that allegedly occurred on January 18, 2020 could reasonably find that the Jeep is offence-related property and that it was related to the commission of one of the offences. In arriving at this conclusion, I have taken into account that “the definition of offence-related property is extremely broad, and the threshold for forfeiture is low”: Soares, at para. 18. See also Trac, at paras. 80 and 96.

[49] Counsel for the Applicant does not appear to contest this conclusion. Instead, he argues that a forfeiture application by the Crown “will inevitably be unsuccessful” given the record on this application and having regard to the ability of a judge, in certain circumstances, to provide relief from forfeiture.

[50] Pursuant to s. 490.4(3) of the Criminal Code, a judge hearing a forfeiture application may order property that would otherwise be forfeited under s. 490.1(1) or s. 490.2(2) be returned to a person (other than a person who was charged with the indictable offence) if the judge is satisfied that:

• the person is the lawful owner of the property; and
• the person “appears innocent of any complicity in, or collusion in relation to, the offence.”

[51] I have concluded on a s. 490(10) application the onus is on an applicant to establish, on a balance of probabilities, that he or she is the lawful owner of the property in question (or lawfully entitled to possession of the seized property) and that the property will not be required for an investigation, preliminary inquiry, trial or other proceeding. In the circumstances of this case, it is my view that to decide that the Jeep will not be required for a future forfeiture application, I must be satisfied that there is no reasonable basis to conclude that a judge hearing a forfeiture application could reject a s. 490.4(3) application to return the Jeep to the Applicant.

(iii) Has the Applicant satisfied the requirements of the applicable test?

[52] I will start by addressing whether the Applicant is the lawful owner of the Jeep. The Crown did not cross-examine the Applicant on her affidavit. The fact that the Applicant leased the Jeep to another person did not affect her ownership of the vehicle. The evidence establishes that the Applicant is the lawful owner of the Jeep.

[53] The Crown argues that the continued detention of the Jeep is required for the purposes of an ongoing investigation, trial and, if D.G. is convicted, a forfeiture hearing.

[54] In support of the position that the Jeep is required for an ongoing investigation and trial, the Crown relies on the fact that the identity of the woman who allegedly attempted to force the Complainant back into the Jeep (at the direction of D.G.) remains unknown. The police recovered biological evidence from the Jeep. The Crown suggests that “further testing may be required to assist in identifying [the unknown woman]”. The Jeep has been held by the police for about 19 months. In my view, the police have had more than enough time to obtain sufficient samples from the Jeep for the purpose of conducting forensic tests. I see no reasonable basis to conclude that the Jeep will be required for an ongoing investigation.

[55] After the Jeep was seized, SOCO photographs were taken of the interior and exterior of the vehicle. D.G.’s counsel is not opposed to the Jeep being returned to the Applicant. I see no reasonable basis to conclude that the defence or the Crown will require the Jeep for D.G’s trial.

[56] The Applicant has established that the detention of the Jeep is not required for an investigation or D.G.’s trial.

[57] I will now turn whether the Jeep is required for a forfeiture application. Crown counsel agrees there is no evidence that the Applicant is anything other than an innocent third party. Once again, the following evidence from the Applicant has not been challenged by the Crown:

• the Jeep had been leased to a third party since March, 2019;
• the lease had been arranged by the Applicant’s boyfriend;
• the Applicant did not know the identity of the lessee;
• the Applicant “played no role [in], and [had] no knowledge of, any illicit activity that the [lessee] may have engaged in with respect to the Jeep”; and
• the officer-in-charge of this investigation said that the Applicant had been cleared of any involvement regarding this incident.

[58] In TO-Bargains, at para. 71, Durno J. held that it was premature, as the judge hearing the s. 490(11) application, to determine whether the seized property in that case could be subject to forfeiture. Durno J. was clear that this finding was based on the record in that application. In that case, Crown counsel cross-examined the Applicant’s witness. There were a number of concerns about the credibility of that witness and the reliability of his evidence. In my view, the record in the case at bar is distinguishable. The uncontested evidence on this application clearly supports the conclusion that the Applicant is “innocent of any complicity in, or collusion in relation to” the offences that are before the court. The evidence also establishes that the Applicant is the owner of the Jeep. In my view, the record in this case allows the court to determine whether the Jeep could be subject to forfeiture.

[59] In my view, based on this record, the reasonable exercise of discretion by a judge hearing a forfeiture application could only lead to one result – an order requiring the return of the Jeep to the Applicant under the authority of s. 490.4(3).

[60] I am satisfied that the requirements of s. 490(11) have been met. The Applicant is the lawful owner of the Jeep and the continued detention of the Jeep is not required for any of the purposes mentioned in s. 490(1)(a).

[61] Finally, both counsel made brief submissions on the issue of hardship. Hardship is not a statutory precondition for the return of property to an innocent third party: TO-Bargains, at para. 32. Hardship, if established, is not a basis for granting an application under s. 490(11): Alchin, at para. 19. [4] While a finding of hardship in this case is supported by the evidence, it played no role in arriving at the conclusion that the Jeep should be returned to the Applicant.

Conclusion

[62] The Application for the return of the Jeep to the Applicant is allowed.

NORTH J.

[1] In these reasons, out of an abundance of caution, I have used initials to describe certain people as I previously imposed a publication ban, pursuant to s. 539 of the Criminal Code, on the evidence taken at D.G.’s preliminary inquiry.

[2] In April 2021, after a preliminary inquiry, I committed D.G. for trial on all of the counts that were before the Court.

[3] Section 490.1(2) provides that even where the evidence does not establish that property in respect of which an order of forfeiture would otherwise be made under s. 490.1(1) is related to the commission of an indictable offence of which a person is convicted or discharged, a court may make an order of forfeiture where the court is satisfied, beyond a reasonable doubt, that the property is offence-related property.

[4] Hardship must be established for an application under s. 490(7): TO-Bargains, at paras. 32 and 52.