ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-024-MO
DATE: 2012-11-21
B E T W E E N:
MARCEL BRETON
Gary Chayko and Gordon Campbell, for the Applicant
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Claude Richer , for the Respondent
Respondent
HEARD: October 24, 2012, at Thunder Bay, Ontario
Mr. Justice J.F McCartney
Reasons on Application
[ 1 ] This is an application by the accused under s. 462.34 of the Criminal Code requesting the release of seized monies for use for legal expenses.
[ 2 ] The relevant portions of the section reads as follows:
462.34 (1) Any person who has an interest in property that was seized under a warrant issued pursuant to section 462.32 or in respect of which a restraint order was made under subsection 462.33(3) may, at any time, apply to a judge
(a) for an order under subsection (4); or
(b) for permission to examine the property.
(4) On an application made to a judge under paragraph (1) (a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2) (b), the judge may order that the property or part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,
(a) if the applicant enters into a recognizance before the judge, with or without sureties, in such amount and with such conditions, if any, as the judge directs and, where the judge considers it appropriate, deposits with the judge such sum of money or other valuable security as the judge directs;
(b) if the conditions referred to in subsection (6) are satisfied; or
(c) for the purpose of
(i) meeting the reasonable living expenses of the person who was in possession of the property at the time the warrant was executed or the order was made or any person who, in the opinion of the judge, has a valid interest in the property and of the dependants of that person,
(ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i), or
(iii) permitting the use of the property in order to enter into a recognizance under Part XVI,
if the judge is satisfied that the applicant has no other assets or means available for the purposes set on in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.
(5) For the purpose of determining the reasonableness of legal expenses referred to in subparagraph (4) (c)( ii), a judge shall hold an in camera hearing, without the presence of the Attorney General, and shall take into account the legal aid tariff of the province.
(5.1) For the purpose of determining the reasonableness of expenses referred to in paragraph (4) (c), the Attorney General may
(a) at the hearing of the application, make representations as to what would constitute the reasonableness of the expenses, other than legal expenses; and
(b) before or after the hearing of the application held in camera pursuant to subsection (5), make representations as to what would constitute reasonable legal expenses referred to in subparagraph (4) (c) (ii).
[ 3 ] A summary of the relevant facts are as follows:
On December 1, 2009 Police obtained a search warrant under s. 487 of the Criminal Code to search the residence of the accused at 9082 Mapleward Road in Thunder Bay, concerning alleged weapons on the property.
Found at the residence was the accused, Marcel Breton, and another occupant, Joseph Timmermans.
During the search police found, in and around the premises, a variety of drugs (cocaine, marijuana, ecstasy) and drug paraphernalia. They also found $54,350.00 in Canadian cash in bundles throughout the residence, $1,700 in cash on the accused’s person, along with $1,235,620 in cash in a plastic tub buried in the dirt floor of the garage.
Breton and Timmermans were charged with a variety of narcotics offences, as well as the offence of possession of property obtained by crime exceeding $5000.00, and possession of a prohibited weapon.
As a result of later searches, several property offence charges were laid against Breton.
On April 30. 2010, Timmermans commenced an Application for payment of legal fees under s. 462.34 of the Criminal Code . On February 10, 2011, the application was adjourned sine die .
On October 24, 2012 Marcel Breton also commenced the present Application for payment of legal fees under s. 462.34 of the Criminal Code .
THE LEGAL TEST
[ 4 ] The legal test, which must be met by an accused person under s. 462.34 on a balance of probabilities is as follows:
Are the funds seized available for release for reasonable legal expenses?
Has the Applicant established sole entitlement to the funds requested?
Can the Applicant demonstrate financial need?
[ 5 ] If the accused person meets this test, the court must then decide the quantum of the legal expense, and any conditions that shall apply upon the release of the funds.
DISCUSSION
- Are the funds available for release?
[ 6 ] In this case there is no dispute between the parties that the seized monies are available for release.
- Has the applicant established sole entitlement to the funds?
[ 7 ] In his affidavit sworn October 23, 2012 the accused states the following at paragraph 3;
“ The currency seized is mine, and I hereby assert a sole and exclusive ownership claim to it. Since its seizure almost three years ago, no one else has asserted any kind of claim over this currency. I was the only one who was aware of its location in the garage. I have no other assets or means available for the purpose of paying my reasonable legal expenses, and there is no other person who appears to be the lawful owner of or who is lawfully entitled to possession of that property in question.”
[ 8 ] This is the only evidence that is put forward concerning the accused’s sole entitlement to these funds, totalling well over $1,000,000, other than the fact that they were found in the home he lives in which was purchased by his mother apparently for his use. The Crown argues that there are competing claims, one being a notification from the Canada Revenue Agency that the monies should be turned over to them since they are entitled to them (the accused disputes this in his affidavit). Further the Crown alleged that the application by Timmermans for the release of funds is a competing claim. I disagree with the Crown’s position in both these areas.
[ 9 ] As far as the Canada Revenue Agency claim is concerned, as the defence points out, it is merely a contingent civil claim, and not intended to defeat an application under s. 462.34 . In that regard I agree with the following paragraphs set out in the case of R v. Murray (2004 Saskatchewan Queen’s Bench page 66) as follows;
16 “Section 224.3 provides CCRA with an extraordinary remedy for the collection of outstanding taxes. It should not be interpreted so as to defeat the competing statutory right of an accused with no other resources to apply to the court to use the seized moneys in furtherance of his or her Charter right to be presumed innocent, to retain and instruct counsel and to make full answer and defence. As stated by the Ontario Court of Appeal in Wilson , supra, the need of an accused to access seized funds to obtain the assistance of counsel ‘has a constitutional underpinning, and must be given due weight.’ (p.479 at e)
17 I have concluded that CCRA does not have a priority claim to seized funds and that at this time it is not lawfully entitled to possession of the seized funds. This leads to a consideration of the applicant’s financial circumstances and his assets or means of meeting his reasonable legal expenses.”
[ 10 ] I also disagree with the Crown’s contention that Timmermans’ application should be considered a competing claim sufficient to defeat the applicant’s claim to sole entitlement. Timmermans’ only connection with the money seems to be that he happened to be a resident of the premises. He makes no claim to possession or entitlement or even knowledge of the funds. He just asked that the funds be released to him for his legal needs.
[ 11 ] Furthermore, this case is factually similar to the situation in the recent case of R. Murtaza and Murtaza, 2011 ONSC 7577 . In that case the monies in question were located in a leased self-storage unit. The lessee was not one of the applicants applying for the funds. There the Court accepted the applicant’s evidence that they were in possession and control of the storage units and its contents even though they were not the lessee’s of the unit. Here, on a balance of probabilities, I am satisfied that the accused was solely entitled to the funds in question.
- Can the applicant demonstrate financial need?
[ 12 ] The Crown argues that the Accused, to show that he has exhausted all other means of attaining financial support, must show that he has applied for legal aid, as well as showing he has no other assets or means to meet his legal expenses.
[ 13 ] Regarding the Crown’s position on legal aid, while I agree the authorities are “divided” as to whether a legal aid application is a necessary prerequisite to establishing need, in the instant case, I am content, that the accused on two occasions, has attempted to obtain legal aid funding and was turned down - once on the basis he had sufficient funds, and later on the basis of lack of information given to legal aid. Furthermore, I am satisfied that, in any event, because of the monies involved here, legal aid would not have been available to him in any event.
[ 14 ] However, with respect to other avenues of financial support, I am not satisfied that the accused has demonstrated an inability to raise funds. When cross examined by the Crown on his affidavit he indicated he is living on social assistance of $560.00 a month. He says he has no investments, no bank account, no assets whatsoever. He has no inheritance, is not a recipient of any pensions, owns no real estate, and has no motor vehicles. He did not work the years between 1999 and 2009, and filed no income tax returns during that period. And yet he lives in a mortgage free home apparently purchased for him by his mother years ago for $100,000, which is now worth considerably more than that, and has amassed well over $1,000,000 in cash which was found in and about this home. Under these circumstances, one would have to wonder whether he has really exhausted all other means of financial support other than his own assertion of same. More evidence would be required to establish financial need in this instance.
[ 15 ] Furthermore, the evidence would seem to indicate that to some degree at least the accused’s inability to finance counsel is his own fault, rather than a lack of finances. He claims he has had local counsel, but can’t seem to get along with the lawyers in this area. He has had lawyers from Toronto and Hamilton, but they have not continued to represent him. Presently he is anticipating hiring two counsel from the Ottawa area to represent him. One would have to question, whether, under normal circumstances, such behavior on his part was necessary in order to obtain counsel. It would certainly have been costly.
[ 16 ] Consequently I am not satisfied that the accused has demonstrated on a balance of probabilities that he is unable to finance his own legal needs.
[ 17 ] For all of the above reasons the application is denied.
“Original signed by”
The Hon. Mr. Justice J.F. McCartney
Released: November 21, 2012
COURT FILE NO.: CR-12-024-MO
DATE: 2012-11-21
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MARCEL BRETON Applicant - and – ATTORNEY GENERAL OF CANADA Respondent REASONS ON APPLICATION McCartney, J
Released: November 21 , 2012
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