ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-13144
DATE: 2014/06/16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KAYLA KAWECKI
Applicant
Karine Charland, for the Public Prosecution Service of Canada
Michael A. Johnston, for the Applicant
HEARD: May 30, 2014
decision on certiorari application
ratushny J.
1. Introduction
[1] The applicant applies by way of certiorari and mandamus for the return of her vehicle (the vehicle) that was ordered detained under section 490(1)(b) of the Criminal Code of Canada on February 10, 2014 (the Detention Order).
[2] The applicant submits there was no evidence before the justice of the peace to allow him to make the Detention Order under section 490(1), with the consequence that because the section’s mandatory requirements were not met there was jurisdictional error and the Detention Order must be quashed.
2. Background Facts
[3] The applicant is the registered owner of the vehicle.
[4] On January 24, 2014 a search warrant under section 487 of the Criminal Code was granted, authorizing various searches including a search of the vehicle on the ground that it had been used by the applicant’s boyfriend, Jordan Forester, in connection with the commission of an offence and was, therefore, “offence-related property” as defined in section 2 of the Criminal Code.
[5] The Information to Obtain (the ITO) sworn by Detective Michael Cathcart in support of the search warrant sets out his grounds to believe the vehicle is offence-related property. The ITO states the applicant used the vehicle on six occasions to drive Jordan Forester to and/or from meetings with a police agent and undercover officer during which he discussed and made arrangements for the sale of one-kilogram quantities of cocaine. The ITO also states that the vehicle was used to transport $47,000.00 provided by the police agent to Mr. Forester for the purchase of one kilogram of cocaine.
[6] It is not alleged that the applicant participated in or had knowledge of any of the drug transactions and she has not been charged with any offence. Jordan Forester has been charged with criminal offences.
[7] On January 29, 2014 the search warrant was executed and the vehicle searched. Nothing was found but it was seized and detained as offence-related property.
[8] On February 10, 2014 Detective Cathcart presented a first Report to Justice in the required Form 5.2 to a justice of the peace under section 489.1 of the Criminal Code, confirming the seizure and detention of the vehicle.
[9] This first Report to Justice contained two errors: that the vehicle was a 2003 model when it should have been indicated to be a 2011 model, and a checkmark beside the pre-typed standard paragraph stating that the item seized had been returned to its owner. The vehicle had not been returned to its owner and a manually inserted portion in another part of the Form 5.2 contradicted this checkmark and indicated the true location of the vehicle as being held at the Ottawa Police Service Evidence Control Services in Ottawa. All other identifying details for the vehicle including its vehicle identification number and licence plate number were accurate.
[10] A justice of the peace signed the requested Detention Order as a result of the first Report to Justice. The Detention Order indicated that charges had been laid in the investigation so that it remained in effect until “the completion of all proceedings.”
[11] On February 19, 2014 Detective Cathcart presented a second Report to Justice in Form 5.2 in respect of the vehicle, to correct the previous error in the first Report to Justice that had a checkmark beside the paragraph indicating the vehicle had been returned to its owner. On this occasion the correct information that had also been present in the first Report to Justice was not contradicted by the incorrect paragraph having been checked and indicating the contrary. The error regarding the 2003 model was not corrected but all other identifying details for the vehicle remained accurate.
[12] Again, a justice of the peace signed the Detention Order for the vehicle, this time dated February 19, 2014 and indicating that it remained in effect until “the completion of all proceedings” as charges had been laid.
[13] Each Report to Justice resulting in the Detention Order indicated that on January 29, 2014 the police “had executed the above mentioned Search Warrant and searched and seized the vehicle used by Jordan Forester” and named identification numbers for the vehicle.
3. Detective Cathcart’s Testimony
[14] Detective Cathcart testified as to his involvement in connection with the ITO, the search of the vehicle pursuant to the search warrant authorization, its seizure and his submitting of the two Reports to Justice in Form 5.2.
[15] The officer explained the indication of a 2003 model year for the vehicle was a typographical error in both the first and second Reports to Justice and that it was made in the context of the entire investigation involving fourteen separate Reports to Justice in Form 5.2 and six to seven different vehicles. He also admitted he found Form 5.2 confusing in its format.
[16] He testified that for the first Report to Justice he had an informal discussion with the justice of the peace and submitted all the ITOs he had prepared including the ITO in respect of the vehicle.
[17] He said that for the second Report to Justice, its purpose was to correct the error in the first Report to Justice and he told the justice of the peace of this before she signed the second Detention Order.
[18] He said he never considered returning the vehicle to the applicant because he regarded it as offence-related property that was to be detained for the purpose of a future forfeiture hearing.
[19] He agreed the two Reports to Justice did not identify the lawful owner of the vehicle but both identified the vehicle as “used by Jordan Forester.”
[20] He agreed he did not inform the justices of the peace as to why detention was required.
4. The Applicable Statutory Scheme
[21] The governing sections in the Criminal Code set out the procedures to be followed upon a peace officer seizing a thing in the execution of his duties. I phrase my summary below in terms of Detective Cathcart having been the peace officer.
[22] The Supreme Court of Canada in R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35, has set out these same procedures in a case involving the seizure, without a warrant, of $35,000.00 of bail monies alleged to be “offence-related property” or proceeds of crime under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the CDSA). As McLachlin C.J. stated in Raponi at para. 8, “The Code sets up a procedural scheme for dealing with the seizure, detention and release of the proceeds of crime. It also applies to seizures made under the CDSA.”
Section 489(1) C.C.
[23] Section 489(1) allows for the lawful seizure under a warrant of a thing not mentioned in the warrant but which the peace officer believes on reasonable grounds “has been used in the commission of an offence” (s. 489(1)(b) C.C.).
[24] The search warrant authorizing the search of the vehicle did not authorize its seizure; however, this section clearly allows its lawful seizure by Detective Cathcart as offence-related property.
[25] The relevant statutory scheme applying to the applicant’s application is contained in the following two sections.
Section 489.1 C.C.
[26] After a peace officer has seized a thing, he must, as soon as practicable, exercise his discretion as to whether he is satisfied that it is to be returned to the person lawfully entitled to its possession or, if he is not satisfied that the thing is to be returned, he is to either bring the thing seized before a justice of the peace or submit a Report to Justice in Form 5.2, “varied to suit the case” and indicating that he has seized and detained the thing (s. 489.1(1) and (3) C.C.).
Section 490(1) C.C.
[27] Where a Report to Justice in Form 5.2 is brought before a justice of the peace in respect of a thing seized, the justice “shall” either (a) order it be returned to the known lawful owner or person who is lawfully entitled to possession of the thing seized unless the peace officer having custody of the thing satisfies the justice that its detention “is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding”; or (b) order it be detained where the peace officer has satisfied the justice the thing seized should be detained for any of these same reasons.
5. The Positions of the Parties
[28] The applicant’s position is that because the justice of the peace making each Detention Order was not informed by Detective Cathcart either orally or by way of Form 5.2 that the applicant was the lawful owner of the vehicle or that the detention of it was required for an “other proceeding”, the justice was not able and did not perform his mandatory duty under section 490(1) C.C. which was to decide on evidence before him whether to order the return or detention of the vehicle. This absence of evidence before the justice of the peace as to why the detention of the vehicle was required amounts, the applicant argues, to a failure to comply with that mandatory statutory scheme such that the justice had no jurisdiction to make each Detention Order and it must be quashed.
[29] The applicant goes on to submit that the purpose of sections 489.1 and 490(1) is to protect the proprietary interests of the innocent person by requiring the justice of the peace to consider whether the thing seized should be returned or detained. In the present case, the applicant submits, the justice of the peace was not told that the vehicle belonged to someone other than Jordan Forester and the effect was that it was the peace officer, Detective Cathcart, who made the decision for the justice of the peace as to whether the vehicle should be returned or detained, in contravention of the statutory scheme.
[30] The respondent-Crown’s position is that the justice of the peace knew from the Form 5.2 Report to Justice that the vehicle was searched under the authorization of a search warrant and that it was “used by Jordan Forester” and had been detained. That was enough information, the Crown submits, for the justice of the peace to sign the Detention Order under section 490(1).
[31] The Crown goes further, and submits that a Report to Justice signed by a peace officer stating that detention is required and charges have been laid constitutes sufficient grounds for a justice of the peace to make a Detention Order pursuant to section 490(1) of the Criminal Code.
6. Analysis
[32] In opposing the applicant’s argument that the justice of the peace had no jurisdiction under section 490(1) to sign the Detention Order, the Crown refers me to Dubois v. The Queen (1986), 1986 60 (SCC), 25 C.C.C. (3d) 221 at 230, as referred to in R. v. Hicks, 2000 BCSC 89 at para. 5,
Jurisdictional error is committed where “mandatory provisions” of the Criminal Code are not followed, and in the context of s. 475 [test for order to stand trial], this means at least that there must be some basis in the evidence proffered for the justice’s decision to commit. There is no jurisdiction to act “arbitrarily”.
[33] In Hicks, the things seized and ordered detained under section 490 were large sums of cash. The argument in favour of certiorari was similar to that in the present case, that on the face of the record before the justice of the peace who granted the detention order there was a lack of evidence to support any order for detention such that the justice lacked jurisdiction to make the order and it should be quashed (paras. 2 and 6).
The Scope of the Statutory Scheme under Sections 489.1 and 490(1) C.C.
[34] In Hicks, the detention orders were upheld. The Court commented, at para. 14, that the justice of the peace “has very limited jurisdiction within the scope of s. 490 and that jurisdiction does not include the holding of a hearing or an inquiry into the bona fides of the police officer’s actions in the execution of his duties under the Code.”
[35] I would add to that comment from Hicks that neither does section 490(1) allow for the holding of a hearing by the justice of the peace as to the merits of the evidence from the peace officer that the thing seized should be detained or returned, including a hearing into the issue of whether the lawful owner is an innocent person suffering a hardship as a result of her vehicle being detained.
[36] I make this point in response to the argument from the applicant that the purpose of sections 489.1 and 490(1) is to protect the proprietary rights of the innocent person. This is, with respect, an overstatement of the objective of this stage of the statutory scheme. It is more relevant to the later stages of the section 490 scheme including, for example, a claim of hardship pursuant to section 490(8).
[37] Instead, I understand these two sections to mandate how a peace officer acting in the execution of his duties is to decide on restitution or detention of the thing seized (s. 489.1) and to require him to report to a justice on his decision made pursuant to section 489.1 to return or detain and to obtain an order from the justice, on the basis of Form 5.2 and any other evidence he may choose to give to the justice, to either return or detain (s. 490(1)).
[38] I agree with the Crown that the objective of the statutory scheme governing seizure, detention and release at this stage under section 489.1 is to ensure that things seized by peace officers in the course of their duties are reported to the court and returned to their owner in a timely manner unless their possession is unlawful or their detention is required for an investigation or preliminary inquiry, trial or other proceeding. Section 490(1) then carries forward this objective and requires the justice of the peace receiving the Report to Justice from the peace officer to order either the return or detention of the things seized, based on the information in the Form 5.2 Report to Justice and any other information the peace officer may convey.
The Evidence Before the Justice of the Peace for the Detention Order
[39] The justice of the peace being asked to make the Detention Order knew from the information in Form 5.2, regardless of the errors contained in the form, that the vehicle had been searched under the authority of a search warrant, that it was regarded as offence-related property and that Detective Cathcart was saying charges had been laid and detention was required.
[40] I agree with the Crown that this was enough evidence for the justice to decide that the vehicle should continue to be detained until the completion of all proceedings. The justice did not need to know who owned the vehicle. This was irrelevant information at this section 490(1) stage.
[41] Even if the justice had been informed that the applicant and not Jordan Forester owned the vehicle as the applicant submits he should have been informed, there is no statutory authority under section 490(1) for the justice to do anything with this information including no authority to determine or protect the proprietary rights of the applicant, even as an innocent person.
[42] The justice’s limited statutory duty under section 490(1) was to make either an order for return or an order for detention of the vehicle based on the peace officer’s Report to Justice in Form 5.2 and as was the situation in the present case, to order its detention if satisfied its detention was required for an “other proceeding.”
[43] I agree with the applicant that the Form 5.2 in the present case could have expressly and more clearly stated that the vehicle was to remain detained until the completion of all proceedings and for the purposes of an “other proceeding,” tracking the wording in the subsection, namely a forfeiture hearing. Instead, there was no mention made of detention being required for an “other proceeding.”
[44] Detective Cathcart testified that a forfeiture hearing was contemplated as being the “other proceeding” as such a hearing occurs in the usual course under the statutory scheme for offence-related property that has been seized and detained and where charges have been laid.
[45] I find that this omission in Detective Cathcart’s Form 5.2 of an express statement that detention was required for an “other proceeding” did not amount to a fatal defect. It did not cause the Detention Order to have been made without evidence of that “other proceeding” being placed before the justice of the peace as required under section 490(1).
[46] I come to this conclusion because the peace officer and the justice of the peace were operating and are presumed to have known they were operating within one stage of a larger statutory scheme for the seizure, detention and release of offence-related property. A forfeiture hearing or an application for the return of seized things form part of a later stage of the section 490 scheme for things seized and detained and are clearly an “other proceeding.”
[47] In addition, there is mention made in the standard order portion of Form 5.2 that detention is required “until the completion of all proceedings” and there is no reason to conclude that the “other proceeding” referred to in section 490(1) is not included in this phrase.
[48] It is this statutory context when taken together with the information contained in Detective Cathcart’s Form 5.2 Report to Justice that allowed the justice, in my view, to exercise his statutory authority under section 490(1) and to be satisfied that detention was required for an “other proceeding.”
[49] This is the same conclusion reached in R. v. Dawson, 2013 ONSC 4706, at paragraphs 7 and 8.
[50] To summarize, in the present case I find the justice of the peace had evidence before him to make the Detention Order for the purposes of an “other proceeding” in compliance with section 490(1). That evidence before the justice was the following as contained in Detective Cathcart’s Form 5.2:
(1) the information that the vehicle had been searched, seized and held pursuant to a search warrant as offence-related property;
(2) the information that charges had been laid and detention was being sought until the completion of all proceedings; and
(3) in accordance with the larger scheme under section 490, offence-related property that is sought to be detained “until the completion of all proceedings” satisfies the statutorily mandated basis for detention required for an “other proceeding” under the section 490(1) stage, in that “other proceeding” is an inherent part of and subsumed in the phrase “until the completion of all proceedings.”
[51] Accordingly, I find that no jurisdictional error occurred.
[52] I make three further comments to address other issues raised by the applicant.
[53] Firstly, as Detective Cathcart observed, Form 5.2 is certainly not the clearest of forms or easy to read. However and as the Crown has pointed out, Form 5.2 is a statutorily approved form that pursuant to section 849(1) C.C. is “deemed to be good, valid and sufficient in the circumstances for which [it is] provided.” This amounts to giving Form 5.2 a statutory blessing of sufficiency even in the face of its drafting deficits.
[54] Secondly, in the introductory words to the draft order of return and the draft order of detention contained within the standardized portion of Form 5.2, reference is made to the justice having received the Form 5.2 Report to Justice and having considered “the application” of the peace officer for a detention order. Detective Cathcart submitted no separate written application for a detention order and I agree with the Crown that there is no statutory requirement that there be one. Instead, it is clear that the “application” refers to the Form 5.2 Report to Justice together with the draft submitted by the peace officer of the requested order as contained within the Form 5.2. There is no missing “application”.
[55] Thirdly, I conclude that the mistakes made on each Form 5.2 Report to Justice as to the model year of the vehicle and in the first Report to Justice as to where it was being held did not materially affect the substance of the evidence that was before the justice of the peace as reviewed above in support of each requested Detention Order.
7. Conclusion
[56] It is for these reasons that the application is dismissed.
[57] On the matter of costs, counsel have indicated their wish to make submissions on costs subsequent to the release of this decision.
[58] In her Application Record the applicant indicated she was requesting costs on a full indemnity basis and I presume this request would have been made in the event of her success on the application. That success has not occurred. If it had, I agree there would have been a need for further submissions on costs.
[59] However, in its Application Record the Crown has opposed any award of costs even if the application had succeeded and has requested the application be dismissed without costs.
[60] I agree with the Crown’s submission in its Application Record that there has been no allegation made or factual basis established by the applicant in her Application Record that would amount to Crown misconduct or a “marked and unacceptable departure from the reasonable standards expected of the prosecution” (R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 87) in connection with the detention of the vehicle.
[61] This remains the situation even after hearing the evidence on the application.
[62] As such, there is no basis for any award of costs in this matter and no need for further submissions in this respect.
[63] Accordingly I dismiss the application, without costs.
Justice L. Ratushny
Released: June 16, 2014
COURT FILE NO.: CR-14-13144
DATE: 2014/06/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
KAYLA KAWECKI
Applicant
decision on certiorari application
Ratushny J.
Released: June 16, 2014