ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1963/13
DATE: 2013/11/21
BETWEEN:
HER MAJESTY THE QUEEN
Tom Andreopoulos and Jeremy Streeter, for the Respondent
Respondent
- and -
NICOLA NERO
Applicant
Alan D. Gold and Melanie J. Webb, for the Applicant
- and -
G4S CASH SERVICES (CANADA) LTD.
Daniel F. Moore, for the Intervenor
Intervenor
HEARD: November 5, 6, 2013
The Honourable Mr. Justice D.J. Taliano
Reasons for Judgment
[1] On May 23, 2012, Nicola Nero was arrested and charged in the Central South Region with multiple drug-related offences contrary to the Criminal Code and the Controlled Drugs and Substances Act. The charges include, possession of cocaine for the purpose of trafficking, conspiracy to import and traffic in cocaine, conspiracy to import, traffic and possess cocaine for the purpose of trafficking in association with a criminal organization, and possession of the proceeds of crime over $5,000.
[2] These charges were laid following a lengthy investigation and they are serious. Mr. Gold, counsel for Mr. Nero, advises that disclosure is huge and the defence of the case will be complex and time consuming. Some of the issues, he said, are novel and may very well require appellate review. Pre-trial motions in this case are expected to commence on March 18, 2014 and take three weeks to complete. The jury trial of multiple accused, is expected to last for six weeks. If Nero is found guilty, he will be facing a significant term of imprisonment.
[3] In addition, Mr. Nero is also facing a first degree murder charge in the City of Toronto which is in the preliminary hearing stage. Mr. Gold is representing Mr. Nero on this charge as well. The preliminary hearing commenced in May 2013 and submissions are expected to proceed on November 25, 2013. Nero and two other co-accused are all in custody.
[4] On the day of Mr. Nero’s arrest, police officers executed search warrants on two residential properties occupied by him. Nero alleges that he lived at both properties with Tawnya Fletcher (a co-accused), whom he alleges is his common law wife. The residential properties are located at 140 River Beach Road, Niagara-on-the-Lake and 80 Yorkville, Toronto. The police search yielded the staggering sum of $1,177,294 in cash most of which was found in the Toronto property. The currency is part of a Management Order dated August 15, 2012.
[5] The Niagara-on-the-Lake property is stated to be worth $600,000 and has no mortgage. It is registered in the name of Ms. Fletcher.
[6] The Yorkville condominium is stated to be worth 1.8 million dollars and has a mortgage of $600,000. It is registered in the name of 2306625 Ontario Ltd. Ms. Fletcher is the president of this company.
[7] The two properties are subject to a Restraint and Management Order dated July 18, 2012.
[8] Police also seized an engagement ring apparently belonging to Ms. Fletcher, appraised at $878,000, a 2012 Maserati valued at $167,945 in the name of Ms. Fletcher, and a 2011 Ferrari valued at $400,000, registered in the name of the applicant’s father. The Crown alleges that these vehicles are in fact owned by Nero. Watches seized under the warrant had a retail value of approximately $238,000.
[9] The two vehicles are subject to a Management Order dated June 18, 2012.
[10] Nero has brought an application pursuant to s. 462.34 and s. 462.341 of the Criminal Code seeking an order for the release of $500,000 from the seized funds to cover the cost of his legal fees and disbursements in his defence of both sets of charges. Mr. Gold concedes that his application must be confined to the currency seized in the residences.
[11] The Crown opposes the application as does G4S Cash Services (Canada) Ltd. (“G4S”) a company that applied for and was granted standing on this application. The facts giving rise to G4S’s involvement may be briefly stated as follows.
[12] On December 11, 2003, Nero, along with two other men stole approximately $3,000,000 from an armoured car owned by G4S. Nero pled guilty to the offence and was sentenced to a term in prison of nine years. In addition, a restitution order was imposed on Nero in the sum of $1,000,000 by the Ontario Court of Appeal.
[13] On June 10, 2011, Nero consented to a civil judgment in favour of G4S in the sum of $1,497,028.73 with interest at the rate of 3% per year. Nero has not paid any of the monies owing to G4S and the amount owing under the judgment as of November 10, 2013 is $1,605,563.34.
[14] Both the restitution order and the civil judgment have been registered for execution (12-003422 and 12-004115 respectively) making G4S an execution creditor under the Execution Act.
[15] The monies that he received from the armoured car heist of approximately one million dollars remain unrecovered. The position taken by G4S is that Nero is seeking to fund his defence with money that belongs to G4S.
[16] Nero’s application is brought pursuant to s. 462.32(4)(b) and 462.341 of the Criminal Code. Section 462.34(1) of the Criminal Code provides:
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).
[17] Subsection (4) confers on the court the authority to deal with such an application and to order the return of property seized under s. 462.32 if the property is required for reasonable living, business or legal expense provided the applicant has no other assets or means available for these purposes and no other person appears to be the lawful owner of or lawfully entitled to possession of the property.
[18] Mr. Nero filed an affidavit in support of his application and he was cross-examined on his affidavit. His evidence was given under the protection of the Canada Evidence Act and the Ontario Evidence Act. He swore in his affidavit that he has no assets or means to retain counsel other than the seized funds and restrained property.
[19] He states in paragraph 15 of his affidavit that he has no properties or funds in any bank accounts, or otherwise saved, “in my own name”. His wording raises questions in that it suggests that he may have funds in someone else’s name. In paragraph 17, he states that he has an interest in the monies seized by police which is presently under management order. In paragraph 18, he states that no other person, other than his common law wife, is the lawful owner of, or is lawfully entitled to possession of the funds seized at the Niagara and Toronto properties.
[20] I interject at this point to refer to submissions made on behalf of Tawnya Fletcher by Mr. Patterson, who spoke on her behalf after a question arose during submissions as to her “interest” in the currency seized. Mr. Patterson submitted that he had reviewed all of the materials that are before the court with his client and he advised the court that his client “takes no position on Nero’s application”. That is all he said. Significantly, he did not state that she disclaims any ownership or possessory rights over the currency.
[21] To return to Nero’s evidence, he admitted in cross-examination that apart from a small contribution from the family of Ms. Fletcher, he paid for the two residential properties. Although he admitted that none of his assets were registered in his name, he denied that title to his various assets was so arranged for the purpose of defeating third party claims. He also denied the Crown’s allegation that he used the proceeds of the armoured car heist to build an international drug-trafficking network. He attributed his wealth to cash payments he received from the sale of drugs and from personal training sessions at his father’s gym. He also testified that the proceeds of the armoured car heist were spent on legal fees defending the theft charge.
[22] In order to succeed on this application Mr. Nero must satisfy three prerequisites. He must prove on a balance of probability that he has an interest in the currency, that he has no other assets or means available for the purpose of meeting his reasonable legal expenses, and that no other person appears to be the lawful owner of or lawfully entitled to possession of the funds.
DOES THE APPLICANT HAVE AN INTEREST IN THE SEIZED CURRENCY?
[23] For the purpose of this application, it is conceded by the Crown, although not by G4S, that Mr. Nero has an interest in the currency seized. The currency was found in the two residential properties occupied by Mr. Nero and therefore it can be said that he was in possession of the currency at the time the warrant was executed. Since he exercised some control over the money a rebuttable presumption of entitlement arises. Whether his possession was lawful has not been determined and was not addressed in Nero’s affidavit. Ownership of the currency also was not addressed by Nero. Simply put, Nero has not provided any specifics as to the nature and extent of his interest in the currency and without more detail, his interest must be viewed as subordinate to the substantial interest of G4S. Be that as it may, I will assume for the moment that Nero has satisfied the first prerequisite of the test without so finding, and move to the next prerequisite.
ARE OTHER ASSETS OR MEANS AVAILABLE TO MEET HIS LEGAL EXPENSES?
[24] The applicant asserts that the police have seized all of his assets and there is nothing left with which to pay his legal expenses. The Crown submits that he has been able to pay his lawyers up until now, the inference being he has funds available to him to pay his own legal fees. Secondly, the Crown submits that an experienced drug dealer knows that the risk of detection, arrest and seizure is real and he would have taken precautions to ensure the safety of a money source if it did happen. Thirdly, it is argued that his lavish lifestyle suggests vast wealth and likely a cash resource that is probably hidden but still available to him. No evidence was adduced to support these latter two submissions.
[25] Mr. Gold responds that his fees have been paid by members of the applicant’s family. However, that explanation does not answer the question as to where members of the family got the money to pay Mr. Gold nor the possibility that the family was directed to another source of Nero’s wealth in order to fund Mr. Gold’s fees. No affidavit was filed by any member of Nero’s family establishing an independent source of income that would be sufficient to fund the fees that have been paid. Nor has a member of Mr. Nero’s family testified on this subject.
[26] It is true that Mr. Nero has testified under oath that he has no other assets other than what was seized, but there are obvious difficulties with his credibility. He has admitted being a thief of a huge sum of money and he has admitted to dealing drugs. He has also admitted to earning income well in excess of the $30,000 to $40,000 he reports for income tax purposes. The lifestyle he lives, the dishonest and unsavoury character he displays, are factors which require the court to be circumspect with regard to his evidence. Without some form of independent evidence to support his testimony, it is difficult to accept Mr. Nero’s evidence as being trustworthy or reliable.
[27] Accordingly, I must conclude that Mr. Nero has not satisfied the second prerequisite of the test.
NO OTHER PERSON OWNS OR IS ENTITLED TO POSSESSION OF THE MONEY
[28] Clearly, the applicant cannot satisfy this third prong of the test. I say that for these reasons. First, G4S is an execution creditor of the applicant. By operation of s. 10 of the Execution Act, R.S.O. 1990, c. E.24, a writ of execution against real and personal property and any renewal of it binds the personal property against which it is issued from the time it is filed with the sheriff and entered into the electronic database maintained by the sheriff as the index of writs of execution. This provision clearly gives G4S an ownership and possessory interest in the currency seized by the police, in which case, the currency cannot be released to the applicant.
[29] Secondly, the applicant refers in paragraph 17 of his affidavit to Tawnya Fletcher as having an interest in the currency seized. It is to be noted that even though she has not filed any material on this application, her counsel did appear and simply indicated that she was not taking any position on the matter. He did not say that his client did not have an interest in the currency, nor did he say that she was disclaiming or abandoning any ownership or possessory rights over the currency. Accordingly, I have not been persuaded that she does not have an interest in the currency or that she has disclaimed any interest she may have. That being the case, the applicant fails this third prerequisite on this ground as well.
[30] Accordingly, the statutory prerequisites for the release of any of the currency to the applicant have not been satisfied.
[31] Even though it appears that the value of the assets seized by police may be sufficient to cover not only the judgment debtor’s claim, but the release of $500,000 to the applicant’s lawyers, the court is not given any discretion under the relevant provisions of the Code governing this issue. Either the applicant meets the test or he does not. I am not unmindful of Mr. Gold’s submission which took wing in a flight of masterful oratory, that the importance of a fair trial should be a major consideration on this application and that the interests of justice require some flexibility in the interpretation of the applicable sections. However, flexibility is not legislated into the provision and even Mr. Gold could not demonstrate how this court can properly ignore the case law and the clear wording of the legislation. The cases to which I refer are R. v. Malik, [2008] O.J. No. 1470, R. v. Kaleniuk, [2004] O.J. No. 2112, R. v. Abu-Taja, [2001], O.J. No. 2120 and R. v. Granger, 2012 ONSC 6169, [2012] O.J. No. 2120 all of which dismissed similar applications where the provisions of the Code were not satisfied.
[32] Similarly, this application must be and is hereby dismissed.
Taliano J.
Released: November 21, 2013
COURT FILE NO.: 1963/13
DATE: 2013/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HERMAJESTY THE QUEEN
Respondent
- and -
NICOLA NERO
Applicant
- and -
G4S CASH SERVICES (CANADA) LTD.
Intervenor
REASONS FOR JUDGMENT
Taliano J.
Released: November 21, 2013